Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com
2. The Two Types of Errors Render PESI’s Bid Nonresponsive PESI attempts to convince the City that the two categories of errors are simple typographical errors or minor irregularities which do not render its bid nonresponsive. This is patently incorrect on both counts. Both errors are clearly material and specifically addressed in the Public Contract Code.
For the sake of brevity, Ace Electric will not restate the law previously outlined in its bid protest.
However, it is again worth noting that the standard for nonresponsiveness is not difficult to meet. “Literal noncompliance with a bid request does indeed make a bid nonresponsive.” (Taylor Bus Service, Inc. v.
San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1341.) Further, California law requires the City to comply with the representations it makes—the rules it sets—in the Bid Documents. (Pozar v.
Department of Transportation (1983) 145 Cal.App.3d 269, 270 [public entity has a ministerial duty to follow the bid evaluation rules published in its bid documents].) Accepting a nonresponsive bid such as PESI’s bid is violative of these rules.
A. The Wrong Contractors License Number
First, PESI’s bid is nonresponsive because PESI listed a nonexistent Contractors License number.
Both the Bid Documents and California’s listing law require bidders to list a valid Contractors License number for its subcontractors. PESI failed to do so for one of its two subcontractors. PESI’s failure alone make its bid nonresponsive.
To avoid this fatal error, PESI alleges that the Contractors License number it provided for A&N Quality Builders was incorrect based on a typographical error of adding an extra zero. Fortunately, the Public Contract Code specifically addresses this type of bid error and provides bidders with a remedy.
Public Contract Code section 4104, subdivision (a)(2) provides:
An inadvertent error in listing the California contractor license number or public works contractor registration number provided pursuant to paragraph (1) shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive if the corrected contractor’s license number is submitted to the public entity by the prime contractor within 24 hours after the bid opening and provided the corrected contractor’s license number corresponds to the submitted name and location for that subcontractor. (Emphasis added.) In other words, PESI had 24 hours after bid opening on September 7, 2023, to correct this error, otherwise its bid is certainly nonresponsive and grounds for Ace Electric’s protest. PESI failed to do so. In fact, the first time PESI addressed the error was in its September 15, 2023 response – well over a week later.
Accordingly, PESI’s bid is nonresponsive based on this error alone.
B. The Incorrect Descriptions of PESI Subcontractor Scopes Second, PESI’s bid is nonresponsive because it failed to provide an adequate description of the portion of work to be performed by its two subcontractors.
As previously detailed in Ace Electric’s original protest, the Subcontractors Listing form requires bidders to list the portion of work that each subcontractor performing an amount of work meeting a certain threshold will perform. This requirement mimics California’s subcontractor listing law which requires
15.d
Packet Pg. 464 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) September 18, 2023
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com bidders to specifically describe the portion of work to be performed by all subcontractors meeting this same threshold. The purpose of these requirements is to prevent successful bidders from bid shopping and bid peddling subcontractor scopes for a lower price after award by forcing bidders to expressly define their subcontracting commitments at the time of the bid. (See Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1439-40.) This purpose would not be met if bidders could simply list a vague percentage of the overall bid because the scope of work to be performed by each subcontractor is still entirely unclear.
Here, PESI’s response acknowledges that it simply listed a percentage of the total bid for both of its subcontractors on the Subcontractors Listing form’s “Portion of Work” column. In an attempt to explain away this obvious error, PESI argues “the form did not expressly define ‘portion of work’ to mean a particular type of work such as concrete or electrical. Given the fact that ‘portion of work’ immediately followed a discussion of contract percentages, PESI understood the term ‘portion of work’ to mean percent of the total bid price.” However, it strains credulity how PESI could have allegedly believed this because such an interpretation is categorically incorrect. First, the preceding discussion of contract percentages referenced by PESI refers to the threshold a subcontractor must meet for a bidder to be required to list that subcontractor, i.e. an amount in excess of one half of one percent of the total bid. The Subcontractors Listing form’s description of this threshold clearly has nothing to do with the required description once said threshold is met. Second, the sentence following the portion of work listing requirement on the Subcontractors Listing form provides that “[t]he prime contractor shall list only one subcontractor for each portion of the WORK.” This sentence would make no sense if bidders could simply list percentages for the portion of work because the specific portion would remain undefined.
Third and perhaps most importantly, PESI’s interpretation is incorrect because listing percentages undermines the entire purpose of the Subcontractors Listing form and related law because the subcontracting commitment and scope of work would remain unclear.
Accordingly, this is not a simple “inconsequential variance,” but rather a material deviation from the Bid Documents and Public Contract Code. Much like the Contractors License error, this error alone renders PESI’s bid nonresponsive.
3. The City Cannot Waive the Errors in PESI’s Bid
In asking the City to waive the errors in its bid, PESI misstates the standard for waiving bid defects. While public entities have discretion to waive certain errors, this is not one of those cases. As previously outlined in Ace Electric’s bid protest, a bid defect can only, “be accepted if the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential.” (Valley Crest Landscape, Inc. v. City Council, supra, 41 Cal.App.4th at pp. 1440–41.) This determination turns on whether the error could have had one of these two impacts, not whether it actually did. Further, the ability to withdraw a bid under Public Contract Code section 5103 is only one example of a competitive advantage that might be afforded a bidder.
Here, the errors in PESI’s bid are not immaterial and cannot be waived because it would give PESI an advantage not afforded to other bidders. As a result of PESI’s alleged misinterpretation, PESI’s subcontracting commitments for both of its listed subcontractors are conveniently unclear, i.e. there is no indication what scopes of work the subcontractors would perform. Such a defect is not immaterial because it essentially amounts to disregarding the entire statutory scheme addressing this exact issue and the purpose for the Subcontractors Listing form. Unclear subcontracting commitments opens the door for the exact type of bid shopping and bid peddling that the California subcontractor statutory listing requirements are intended to prevent. Waiving PESI’s errors is in fact a competitive advantage because
15.d
Packet Pg. 465 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) September 18, 2023
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com other bidders were not permitted to have “placeholders” for unidentified subcontractor work and complied with the subcontractor listing law. Instead, bidders like Ace Electric followed the Bid Documents and listed the subcontractors for each portion of the work. Allowing PESI to disregard the Public Contract Code and the Bid Documents would certainly provide it a competitive advantage over Ace Electric.
Therefore, the errors cannot be waived by the City.
4. The City Should Not Waive the Errors Even if It Could Moreover, even if the City could waive PESI’s multiple bid errors, it should exercise its sound discretion not to do so. “The point of discretion is that the agency may properly act in either direction. It may waive or refuse to waive such deviations.” (MCM Const., Inc. v. City & County of San Francisco (1998) 66 Cal.App.4th 359, 374.)
PESI attempts to persuade the City to disregard the law and Bid Documents by pointing out that its bid is suspiciously lower than the other four bidders (three of which were very close to one another). This begs the question, how much does the City value awarding a large technical electrical contract to an electrical contractor which could not follow basic instructions in the Bid Documents? Based on the nature of technical electrical work, something similar to adding an extra zero or misreading a clear requirement could have grave impacts to the City and public – impacts that would quickly eat up any cost savings experienced by the City for waiving the red flags in PESI’s bid.
5. Conclusion
PESI’s bid is nonresponsive on multiple counts. These errors are not immaterial and cannot be waived. In any event, even if the City could waive the errors, the City should use its discretion not to do so. Accordingly, the City should hold PESI’s bid nonresponsive and award the Project to Ace Electric as the lowest responsive and responsible bidder.
Very truly yours,
P. Randolph Finch Jr.,
Partner
Chris Hinds
co-CEO, Ace Electric, Inc.
Enclosures
PRF:jcr/3Q15662
cc: Ace Electric, Inc.
Attn: Mr. Chris Hinds, co-CEO (via email only)
Braun & Melucci, LLP
Attn: Kerri Melucci, Esq. (via email only)
15.d
Packet Pg. 466 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) TAB 1
15.d
Packet Pg. 467 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com
URGENT BID PROTEST
VIA OVERNIGHT DELIVERY
Ms. Adriana Nava
Community Services Director
City of El Centro
Community Services Department
1249 West Main Street
El Centro, California 92243
VIA ELECTRONIC MAIL ONLY
Mr. Javier Villaverde
Parks Supervisor
City of El Centro
Community Services Department
1249 West Main Street
El Centro, California 92243
[email protected]
Re: Protest of Award to Premier Electrical Solutions, Inc.
Protestor: Ace Electric, Inc.
6061 Fairmount Avenue, San Diego, California 92120; (619) 814-4767 Owner: City of El Centro (“City”)
Project: Swarthout Park Field Lighting Project,
350 W. Euclid Avenue, El Centro, California (“Project”) Dear Ms. Nava and Mr. Villaverde:
1. Introduction
We represent Ace Electric, Inc. (“Ace Electric”) with respect to the above referenced Project. This is Ace Electric’s protest of the award of the Project to Premier Electrical Solutions, Inc. (“PESI”).
PESI’s bid is nonresponsive because it failed to comply with the Subletting and Subcontracting Fair Practices Act, Public Contract Code section 4100, et seq. Specifically, based on PESI’s failure to properly complete the Subcontractors Listing form, PESI’s subcontracting commitments are improperly uncertain and/or unclear. Further, PESI did not list a valid contractors license number for one of its subcontractors. California law prohibits the City from waiving these defects because it would provide PESI with a competitive advantage not afforded to other bidders and would open the door to improper bid shopping. Therefore, the City must find PESI’s bid nonresponsive and award the Project to the next lowest responsive and responsible bidder, Ace Electric.
2. Brief Factual Background
In July 2023, the City published a project manual for the Project which included an Invitation for Bids (“Bid Documents”). A copy of the City’s Bid Documents is attached at Tab 1.
Bids for the Project were due on September 7, 2023. The City received five bids for the Project.
PESI submitted the lowest bid with a bid of $1,939,000.00. Ace Electric submitted the second lowest bid with a slightly higher bid of $2,126,000.00.
September 12, 2023
P. Randolph Finch Jr.
[email protected]
File 897.001
15.d
Packet Pg. 468 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) Ms. Adriana Nava
Mr. Javier Villaverde
September 12, 2023
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com
3. Requirements and Purpose of the Subcontractors Listing Form As part of a bid, the Bid Documents required bidders complete and submit a Subcontractors Listing form. The Subcontractors Listing form contained three columns which must be completed: (1) Portion of Work; (2) Name/Place of Business Address/Telephone No.; and (3) State Contractor’s License and DIR Registration No.
Under the Portion of Work column on Subcontractors Listing form, the instructions provide that a bidder must “list the portion of the work which will be done by each subcontractor under this Contract.
The prime contractor shall list only one subcontractor for each portion of the WORK.” The Bid Documents’ requirement that bidders provide an actual description of the scope of work performed by its subcontractors is consistent with California’s Subletting and Subcontracting Fair Practices Act. (Pub. Contract Code, section 4100, et. seq.) The central purpose of the Subletting and Subcontracting Fair Practices Act is to protect both the public and subcontractors from the practices of bid shopping and bid peddling in connection with public works projects. (See Cal-Air Conditioning, Inc. v.
Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 668; see also JMS Air Conditioning & Appliance Service, Inc. v. Santa Monica Community College Dist. (2018) 30 Cal.App.5th 945, 958 [The Subletting and Subcontracting Fair Practices Act’s “express and singular purpose is to prevent bid shopping and bid peddling”].) Generally speaking, the Subletting and Subcontracting Fair Practices Act effectuates this purpose by requiring bidders to expressly list its subcontracting commitments. (See id. at 951.) The intent is to prevent a prime contractor from using a subcontractor’s bid to prepare its bid, and then shopping that bid to get a lower price after award. (Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1439-40.) This purpose is accomplished by requiring bidders to list the portion of work the subcontractor is to perform and the type of work. (Id.) If a certain subcontractor is listed, for example, as performing the masonry work, the public entity can determine that particular subcontractor is performing the masonry work, not another subcontractor that was pressured to perform at a lower cost. (Id.)
4. PESI Failed to Complete the Subcontractors Listing Form Here, PESI failed to properly complete the Portion of Work column or otherwise provide a description of the portion of work that its two subcontractors will be performing in violation of both the Subcontractors Listing form and the Subletting and Subcontracting Fair Practices Act.
As shown in the below screenshot of PESI’s Subcontractors Listing form, rather than provide the portion of the work that its subcontractors will be performing, PESI simply put a vague percentage of the overall bid:
15.d
Packet Pg. 469 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) Ms. Adriana Nava
Mr. Javier Villaverde
September 12, 2023
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com Specifically, for subcontractor Robles Underground, PESI simply put “2.2%.” Likewise, PESI only listed “7.5%” for A&N Quality Builders. It is unclear what these percentages represent, i.e., percentage of the total bid versus a certain bid item. In any event, it is entirely unclear what scope of work these subcontractors will be performing.
These descriptions fail to comply with the requirements of the Subcontractors Listing form which requires a bidder “list the portion of the work which will be done by each subcontractor[.]” The term “portion” clearly refers to the actual type and scope of work the subcontractor will perform rather than percentage of the overall bid. For example, a correct entry would be something like “electrical” or “concrete,” which would allow the City to determine what type of work a subcontractor will be performing. This interpretation of “portion” is consistent with and supported by the other requirement of the Subcontractors Listing form which states that a bidder “shall list only one subcontractor for each portion of the WORK.” If bidders were allowed to simply list a percentage, the foregoing sentence would be illogical. Further, if bidders were allowed to only list a percentage as the description, the door would still be open for bid shopping which the Subletting and Subcontracting Fair Practices Act (and reason for the Subcontractors Listing form) aims to curtail. Accordingly, PESI’s listing of percentages does not comply with the requirements of the Subcontractors Listing form or the Subletting and Subcontracting Fair Practices Act.
Further, PESI did not provide a valid State Contractor’s License number for A&N Quality Builders. As shown above, PESI listed “#10001206” as the license number on the Subcontractors Listing form. However, a CSLB license search for 10001206 shows that this license number does not exist:
5. PESI’s Bid is Nonresponsive on Its Face
“A bid is responsive if it promises to do what the bidding instructions require.” (MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.) Accordingly, a bid is non-responsive if it does not exactly conform to the public agency’s specifications for the contract. (Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1188.) Questions of responsiveness are generally determined by looking exclusively at the face of the bid, and do not depend on outside investigation or information. (Great West Contractors, Inc. v. Irvine Unified School
15.d
Packet Pg. 470 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) Ms. Adriana Nava
Mr. Javier Villaverde
September 12, 2023
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com Dist. (2010) 187 Cal.App.4th 1425, 1453; Taylor Bus Service, Inc. v. San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1341.) “[L]iteral noncompliance with a bid request does indeed make a bid nonresponsive.”
As set forth above, PESI’s bid did not follow the Bid Documents, and thus, must be rejected as nonresponsive. On the other hand, Ace Electric’s Bid is the lowest, responsive bid and should be awarded the Project.
6. Legal Standard for Waiving Bid Defects
Although public entities have limited discretion to waive defects, a bid defect can only, “be accepted if the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential.” (Valley Crest Landscape, Inc. v. City Council, supra, 41 Cal.App.4th at 1440–41.) Simply put, a bid including a discrepancy may only be deemed responsive if the discrepancy is immaterial. (See Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 906.) A bid deviation is immaterial if it does not: (1) affect the bid amount; (2) give the bidder an advantage over other bidders; (3) serve as a potential vehicle for favoritism; (4) influence other potential bidders to refrain from bidding; or (5) affect the ability to make bid comparisons. (Id. at p. 907.)
One way to identify a nonwaivable error is if a bidder could have sought relief under Public Contract Code section 5103. Under Public Contract Code section 5103, bidders may seek to withdraw their bid without forfeiting the bid bond if the bidder made a mistake filling out the bid that made the bid materially different. Courts have further defined that qualifying bid errors must be “typographical or arithmetical errors.” (Valley Crest Landscape, Inc., supra, 41 Cal.App.4th 1432, 1442 [citation omitted].) Any error giving a bidder the ability to withdraw its bid without forfeiting its bond is a nonwaivable error because it affords the bidder an unfair advantage not available to other bidders. (Id.) Further, California law requires a public entity to comply with the representations it makes—the rules it sets—in the bid documents. (Pozar v. Department of Transportation (1983) 145 Cal.App.3d 269, 270 [public entity has a ministerial duty to follow the bid evaluation rules published in its bid documents].) Accepting a nonresponsive bid is violative of these rules.
7. The PESI Defects Are Material and Cannot Be Waived
PESI’s bid is nonresponsive because it contains multiple material errors related to the listing of subcontractors on the Subcontractors Listing form. Such errors are material because PESI failed to comply with both California law and the City’s requirements. Further, as a result of these errors, PESI’s subcontracting commitments for both of its listed subcontractors are entirely unclear. For example, there is no indication what type of work these subcontractors will perform. This opens the door for the exact type of bid shopping and bid peddling that the California subcontractor statutory listing requirements are intended to prevent. These errors cannot be waived because it would provide PESI with a competitive advantage not provided to other bidders. Other bidders were not permitted to have “placeholders” for unidentified subcontractor work.
15.d
Packet Pg. 471 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 472 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) TAB 1
15.d
Packet Pg. 473 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) City of El Centro
Swarthout Park Field Lighting
Project
PROJECT MANUAL
PROJECT CODE
July 2023
15.d
Packet Pg. 474 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 1 CITY OF EL CENTRO
STATE OF CALIFORNIA
SWARTHOUT PARK FIELD LIGHTING PROJECT
TABLE OF CONTENTS
Title Section Page Number
Invitation for Bids 2-4
Required Documents 5
Proposal Requirements 6-11
Proposal Bid Form 12-13
Bid Bond 14
Proposal Agreement 15
Construction Services Agreement 16-26
Faithful Performance Bond 27
Labor and Materials Bond 28
Workers’ Compensation Insurance Certification 29
Drug and Alcohol Testing Requirements 30
Subcontractor’s Listing 31-32
Noncollusion Affidavit 33
Corporate Certification or Partnership Information 34
Contractor’s Certification of Qualification for License Classification 35 General Conditions 36-53
Supplementary General Conditions 54-58
Special Provisions 59
Exhibit A – California Public Contracts Code Section 9204 --------- Exhibit B – State Prevailing Wage Rates ---------
15.d
Packet Pg. 475 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 2 INVITATION FOR BIDS
1. GENERAL INFORMATION
The City of El Centro (“the City”) is inviting bids for the Swarthout Park Field Lighting Project located at 350 W. Euclid Avenue, El Centro, California.
2. SCOPE OF WORK
The work involves all site work as marked in the approved set of plans to construct new Field Lighting at Swarthout Park located at 350 W. Euclid Avenue. The work involves the demolition of all existing wood light poles including all wood power poles, installation of new LED Field Lighting with metal poles and new 400A switch gear with underground service (the “Project”).
3. PROJECT SCHEDULE
To be completed within one hundred twenty (120) calendar days after the issuance of a Notice to Proceed. All days set out in this Bid Packet are calendar days unless otherwise specified.
4. PROPOSAL REQUIREMENTS
SEALED PROPOSALS will be accepted at the Office of the City Clerk, City Hall, 1275 W. Main Street, El Centro, California until 2:00 PM local time on Thursday, September 7, 2023, at which time all proposals will be publicly opened and read aloud.
Each bid must be submitted in a sealed envelope bearing on the outside the name of the bidder, its address, and the name of the project for which the bid is submitted. If forwarded by mail, the sealed envelope containing the bid must be enclosed in another envelope addressed as specified in the bid form. No emailed bids will be accepted.
Any questions regarding this Project or bid packet must be submitted by email to [email protected] by Thursday, August 31, 2023 at 5:00 PM to allow time for distributing answers and/or clarifications to plan holders. Any responses to questions will be provided by Addendum. No oral comments shall be of any force or effect with respect to this solicitation.
As used herein, all days are calendar days unless otherwise specified.
BIDS TO REMAIN OPEN: The Bidder shall guarantee the total Bid price for a period of ninety (90) calendar days from the date of Bid opening.
PLANS & SPECIFICATIONS:
Copies of plans and specifications (bid book) may be obtained at Planetbids.com via the City of El Centro website www.cityofelcentro.org. Bidders are responsible for checking the City’s website at www.cityofelcentro.org for any Addenda that may be posted.
MANDATORY PRE-BID MEETING: Bidders must attend a mandatory pre-bid meeting which will be conducted by the City’s Construction Manager at 10 a.m. on Wednesday, August 23, 2023.
The meeting will be held at the City’s Community Services Department Conference Room located at 1249 Main Street in El Centro. The object of the meeting is to acquaint bidders with the site conditions and mandatory bidding requirements. At that meeting the City’s Equal Opportunity Program goals and reporting procedures will be discussed.
15.d
Packet Pg. 476 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 3 PROPOSAL FORMS: No bid will be received unless it is made on the prescribed bid form furnished by the City. Each bid must be accompanied by a guaranty of cash, certified check, cashier’s check or bid bond made payable to the City of El Centro for an amount equal to at least ten percent (10%) of the bid. Such guaranty will be forfeited should the bidder to whom the contract is awarded fail to enter the contract. All guaranties are to be returned after the contract is awarded.
In addition to the required documents listed on page 5, the bid may be considered incomplete and be disqualified if any of the following information is not provided.
1. On the bid form(s), the unit price items must be written in figures and total contract price must be written in words and figures. The words and figures shall appear on the blank spaces provided.
2. On pages 23-24 the Subcontractor’s Listing shall be completed. If no subcontractor will be used, indicate an “X” mark on the space provided for “No subcontractor.” The contractor shall possess a Class C-10 Electrical Contractor license at the time this contract is awarded.
PREVAILING WAGE RATES: The salary and wage for any classification shall be the current applicable State of California wage rates.
In accordance with the provisions of Labor Code §§1770 to 1781 as duly enacted by the State of California, the City Council has ascertained the general prevailing rate of wages applicable to the work to be done as those shown in the specifications of the work. Information on the current state prevailing wages can be obtained by contacting the State of California, Department of Industrial Relations, Division of Labor Statistics and Research, 45 Fremont Street, Suite 1160, San Francisco, California, 94105, (415) 972-8628 or from the California Department of Industrial Relations’ internet website at http://www.dir.ca.gov.
Future effective general prevailing wage rates, which have been predetermined and are on file with the California Department of Industrial Relations are referenced but not printed in the general prevailing wage rates.
All bids are to be compared on the basis of the Engineer’s estimate of the quantities of work to be done. A bid will only be accepted from a contractor who is licensed in accordance with the provisions of Chapter 9, Division 3, of the Business and Professions Code of the State of California as amended.
LIQUIDATED DAMAGES: As set out in Section XVI of the Construction Services Agreement, CONTRACTOR shall pay to the CITY the sum of Five Hundred Dollars ($500.00) for each and every calendar day of delay beyond the Contract Time, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule, or beyond the time indicated in the Project Schedule for any individual Contract activity.
CONTRACTOR AND SUBCONTRACTOR REGISTRATION WITH CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS.
A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Public Contract Code §4104, or engage in the performance of any contract
15.d
Packet Pg. 477 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 4 for public work, as that term is defined in Division 2, Part 7, Chapter 1 of the Labor Code, unless currently registered and qualified to perform public work pursuant to Labor Code §1725.5. It is not a violation of Labor Code §1771.1 for an unregistered contractor to submit a bid that is authorized by Business and Professions Code §7029.1 or by Public Contract Code §§ 10164 or 20103.5, provided the contractor is registered to perform public work pursuant to Labor Code §1725.5 at the time the contract is awarded. A bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor’s and all subcontractor's current registration to perform public work pursuant to Labor Code §1725.5.
AWARD BASIS: The contract will be awarded based on the lowest responsive and responsible base bid as shown by the bid proposal form. See bid proposal form for further clarification.
Special attention of all prospective bidders is called to “Proposal Requirements and General Conditions” annexed to the blank form of the proposal for full directions as to bidding, etc.
Pursuant to California Public Contract Code §22300, the Contractor has the option of substituting securities for any money that is withheld by the City. Refer to section 1-23 of the General Conditions for further information.
CITY’S RIGHTS RESERVED: The City reserves the right to reject any or all bids, to waive any technical irregularity informality in a bid, and to make awards in the interest of the City.
DATE: _____________________ CITY OF EL CENTRO, CALIFORNIA _____________________________
Norma Wyles, City Clerk
END OF INVITATIONS FOR BIDS
15.d
Packet Pg. 478 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 5 REQUIRED DOCUMENTS
The following is a list of documents to be submitted as part of the bid packet. Proposals not containing the following documents could be considered incomplete and are subject to rejection.
x Proposal/Bid Form
x Bid Bond
x Proposal Agreement
x Workers’ Compensation Certificate
x Drug/Alcohol Testing Requirements
x Subcontractor’s Listing
x Noncollusion Affidavit
x Corporate Certification or Partnership Information
x Contractor’s Certification of Qualification for License Classification
15.d
Packet Pg. 479 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 6 PROPOSAL REQUIREMENTS
1. Examination of Plans, Specifications, Special Provisions and Site of Work: The bidder is required to examine carefully the site of work contemplated and it will be assumed that the bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality and quantities of work to be performed and materials to be furnished and as to the requirements of the specifications, special provisions and the contract. It is mutually agreed that submission of a proposal shall be considered prima facie evidence that the bidder has made such examination.
2. Bid Form: All proposals must be made on the bid forms to be obtained from the Community Services Department at 1249 West Main Street, El Centro, CA. All bids must give the prices proposed both in writing and figures and must be signed by the bidder with bidders’ business address.
If the bid is made by an individual, the individual's name and post office address must be shown.
If made by a firm or partnership, then the name and post office address of each member of the firm or partnership must be shown. If made by a corporation, then the bid must show the name of the State under the laws of which the corporation is chartered and the name, titles and business addresses of the President, Secretary and Treasurer. A certification by the legal representative of the firm must be included in the bid. If bidder is a corporate entity and is awarded the contract, prior to execution of the contract, the contractor shall submit satisfactory, documentary proof that the person(s) executing said contract and all related documents on the behalf of said corporation has authority to do so.
3. Rejection of Bid Containing Alterations, Erasures or Irregularities: Proposals may be rejected if they show any alterations of form, additions not called for, conditional or alternative bids, incomplete bids, erasures or irregularities of any kind.
4. Withdrawing Bid. The Bid may be withdrawn upon request by the bidder without prejudice prior to, but not after the time fixed for opening of bids provided that the request is in writing, has been executed by the bidder or the bidders duly authorized representative and is filed with the City Clerk.
4.1 Omissions and Discrepancies: If the bidder finds discrepancies in or omissions on the drawings, or other contract documents or if bidder is in doubt as to their meaning, the bidder should at once notify the Director of Community Services who may send a written instruction to all bidders. Failure to discover or report any such discrepancies or omissions will not relieve the bidder of responsibility for the bid.
4.2 Interpretations and Addenda: No oral interpretations shall be made to any bidder as to the meaning of any of the contract documents, or be effective to modify any of the provisions of the contract documents. Every request for an interpretation shall be made in writing and addressed and forwarded to the Community Services Director.
4.3 The City reserves the right to reject any or all bids.
5. Bidder’s Guaranty: All bids shall be presented under sealed cover and shall be accompanied by cash, cashier's check, certified check, or bid bond made payable to the City of El Centro for an amount equal to at least ten percent (10%) of the amount of said bid, and no bid shall be considered unless such cash, cashier's check, certified check or bid bond is enclosed therewith.
15.d
Packet Pg. 480 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 7 5.1 Return of Bid Guaranty: Within ten (10) business days after the award of the contract, the City Council will return the bid guaranties accompanying the bids which are not to be considered in making the award. All other bid guaranties will be held until the contract has been finally executed, after which they will be returned to the respective bidders whose bids they accompany.
5.2 Execution of Contract: The contract and contract documents shall be signed by the successful bidder and returned together with the contract bonds, within ten (10) days, not including Sundays, after the bidder has received notice the contract has been awarded. No bid shall be considered binding upon the City until the execution of the contract. Failure to execute the contract and file acceptable bonds as provided herein within ten (10) days, not including Sundays, after the bidder has received notice that the contract has been awarded, shall be just cause for the annulment of the award and the forfeiture of the proposal guaranty.
5.3 Sureties: The successful bidder shall also promptly secure with a responsible corporate surety or corporate sureties satisfactory bonds conditioned upon faithful performance by the said bidder of all the requirements under the contract and upon the payment of claims of any material men and laborers thereunder.
6. Award of Contract: The award of the contract, if it is awarded, will be to the lowest responsive and responsible bidder whose bid complies with all the requirements prescribed. The lowest bid shall be the lowest base bid price on the base contract and those additive or deductive items that are specifically identified in the bid solicitation as being used for the purpose of determining the lowest bid price. The award, if made, will be made within sixty (60) calendar days after the opening of the proposals. All bids will be compared on the basis of the Engineer estimate of quantities of work to be done.
7. Inspection: Projects financed in whole or in part with State or Federal funds shall be subject to inspection at all times by the City’s Director of Public Works or designee and the Community Services Director or designee (hereafter “Community Services Director”).
8. Removal of Defective and Unauthorized Work: All work which is defective in its construction or deficient in any of the requirements of these specifications, special provisions or plans shall be remedied or removed and replaced by the Contractor in an acceptable manner and no compensation will be allowed for such correction. Any work done beyond the lines and grades shown on the plans or established by the Community Services Director or any extra work done without written authority will be considered as unauthorized and will not be paid for.
9. Order of Community Services Director. Upon failure on the part of the Contractor to comply with any order of the Community Services Director made under these provisions, the Community Services Director shall have the authority to cause defective work to be removed and to deduct the costs thereof from any monies due or to become due to the Contractor.
10. Final Inspection: Whenever the work provided and contemplated by the contract shall have been satisfactorily completed and the final clean up performed, the Community Services Director will make the final inspection at the site.
11. Amount of Bonds: The faithful performance bond shall be in the sum of not less than one hundred percent (100%) of the contract price.
15.d
Packet Pg. 481 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 8 The bond for material men and laborers shall be in an amount equal to not less than one hundred percent (100%) of the contract price. The form of bond required is attached to the form of contract below.
Payment and performance bonds shall be executed by a California-admitted surety insurer with a minimum A. M. Best Company rating of A+, Class VII.
Whenever any surety or sureties on any such bond, or on any bonds required by law for the protection of the claims of laborers and material men, become insufficient or the City Council has cause to believe such surety or sureties have become insufficient, a demand in writing may be made of the Contractor for such further bond or bonds or additional surety, not exceeding that originally required, as is considered necessary, considering the extent of the work remaining to be done. Thereafter, no payment shall be made upon such contract to the contractor or any assignee of the contractor until such further bond or bonds or additional surety has been furnished.
12. Compliance with Laws and Regulations: No proposal for work will be accepted from a contractor who is not licensed in accordance with the law under the provisions of Chapter 9 of Division III, of the Business and Professions Code of the State of California, as amended. The contractor awarded the contract shall also submit the Contractor’s Certification of Qualifications for License Classification contained in these contract documents along with the submission of the executed contract and acceptable sureties.
All bids submitted and all contracts awarded hereunder must be submitted, filed, made and executed in accordance with all applicable laws and regulations of the State of California and of the United States of America which relate to bids and contracts of the nature referred to herein, whether such laws are expressly referred to herein or not.
13. PREVAILING WAGES: In accordance with the provisions of Labor Code §§1770 to 1781, the City Council of the City of El Centro has adopted the latest publication of the General Prevailing Wage Rates entitled, “State of California, Department of Transportation, Equipment Rental Rates and General Prevailing Wage Rates.” Please note that federal prevailing wage requirements also apply.
14. Filing of Bid Protests: By submitting a Bid, each Bidder hereby agrees and understands that the Bidder must comply with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. The following terms as used in this Section shall have the following meanings:
“Protest” shall mean a written objection by an interested party or affected party to (i) the requirements or specifications contained in the Notice to Bidders or any portion of the documents accompanying that notice; or (ii) a proposed award recommendation protest.
A. Solicitation Phase Protest. The purpose of the solicitation is to obtain competitive Bids from Bidders. Any Bidder who has submitted a bid and who believes that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise the City of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. The Protest does not replace the requirement to report irregularities in the bid documents.
(1) Contents and Requirements
15.d
Packet Pg. 482 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 9 A solicitation protest must be submitted to the contact named in the bid documents by personal delivery or email by close of business at least fifteen (15) calendar days prior to the Bid due date, and must contain all of the following to be considered:
a) The name, address, and telephone number of the protestor; and b) The Project Name and Project Number; and
c) A detailed statement setting forth the grounds for protest, which shall include all the factual and legal documentation in support of the protest in sufficient detail to establish the merits of the protest; and
d) The desired resolution to the protest.
If the submitted protest does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. Any grounds for protest not raised are waived. The protest may not be amended after filing. The protest is a public document.
(2) Evaluation and Determination
No hearing will be held on the protest. City's Community Services Director, or designee, will review the protest and any supporting material and conduct an investigation of the facts. He/she may, but need not, request other Bidders to submit statements or arguments regarding the protest and may discuss the protest with the protestor.
The Community Services Director or designee shall issue a final written decision regarding any solicitation protest to each Bidder prior to Bid opening. The written decision will cite any actions that will or will not be taken in response to the protest. That decision shall be final, and there shall be no further administrative recourse.
B. Protest of Award
(1) Contents and Requirements
Following the opening of the Bids any unsuccessful Bidder, may protest City's proposed award of the Contract by submitting a protest to the Community Services Director or designee no later than close of business on the on the fifth business day. That protest must be submitted in a timely manner, signed by the protesting Bidder, must and contain all of the following to be considered:
a) The name, address and telephone number of the protestor; and b) The Project Name and Project Number; and
c) The City action or recommendation that is being protested; d) A detailed statement setting forth every ground, reason, legal authority and facts in support of the protest, including all documents and evidence including specific references to parts of the bid documents; and
e) A clear statement of the relief request.
15.d
Packet Pg. 483 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 10 A protest does not comply with the requirements set forth herein will be returned to the protestor. The protest shall not be amended after filing. Any grounds for protest not raised are waived. The protest is a public document.
Award Protest Statements are public documents. City will notify the affected parties when a protest has been submitted, and will provide copies of the protest to the affected parties as soon as is reasonably practical.
(2) Evaluation and Determination
The affected parties may file responsive statements in support of or in opposition to the protest within three (3) business days after the receipt of the protest from City. The Community Services Director, or designee, shall review the facts and all submittals relative to the protest and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all affected parties.
Unless otherwise required by law, no hearing shall be provided. In the event a hearing is conducted, the Community Services Director or designee, shall issue written notice to the protestor and affected parties identifying the date and time for the hearing, along with rules concerning the hearing.
C. Delay in Award
Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present:
1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or
3. Failure to make prompt award will otherwise cause undue harm to City.
D. No Limitation on Remedies
Nothing contained herein shall be construed to act as a limitation on City's choice of remedies or confer any right upon any interested party or affected party to a remedy.
E. Basis for Choice of Remedy
In determining the appropriate remedy, the City shall consider all the circumstances surrounding the notice of bids and/or award, including, but not limited to:
1. The seriousness of any deficiency found to exist in the contracting process;
2. The effect of the action on the competitive process;
3. Any urgency surrounding the requirement to enter into a contract; and
4. The effect that implementing the remedy will have on the City.
15.d
Packet Pg. 484 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 11 F. Remedies
If the City determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedures, the City, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, City may issue a new solicitation, make a new selection/award recommendation, or award the contract consistent with applicable statutes, regulations, policies and procedures;
2. In its sole discretion, take no further action; or
3. Take any other action that is permitted by law to promote compliance.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
END OF PROPOSAL REQUIREMENTS
15.d
Packet Pg. 485 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 12 PROPOSAL BID FORM
TO THE CITY OF EL CENTRO:
The undersigned hereby declares that he/she has carefully examined the location of the proposed work that he/she has examined the plans and specifications and read the accompanying instructions to bidders and hereby proposes to furnish all material except owner furnished materials, and labor and do all work required to complete the said work in accordance with said plans and specifications and special provisions for the unit prices set forth in the following schedule. The bidder shall furnish prices for all items shown in the proposal.
ITEM
NO.
APPROXIMATE
QUANTITY
UNIT ITEM W/ UNIT PRICE
(WRITTEN IN WORDS)
PRICE
(NUMBERS ONLY)
TOTAL
(NUMBERS ONLY)
1. 1 LS Mobilization/Bonds
2. 1 LS Demolition
3. 1 LS Field Lighting
4. 1 LS Parking Lot Lighting
5. 1 LS 400A Switch Gear
6. 1 LS Transformer Pad Including
Primary Conduit & Riser
7. 1 LS Profit/Overhead
SWARTHOUT PARK FIELD LIGHTING PROJECT / El Centro, CA
For the total sum of:
Dollars
($ ), hereinafter called Base Bid Price
15.d
Packet Pg. 486 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 13 AWARD BASIS: The contract will be awarded based on the lowest responsive and responsible Base Bid Price as shown on Proposal Bid Form.
1.00 – The undersigned hereby acknowledges the receipt of the following addenda:
None______; No. 1______; No. 2______; No. 3______; No. 4 ______; No. 5______
2.00 – The undersign hereby certifies that this proposal/bid is genuine and not made in the interest of or on behalf of any undisclosed person, firm or corporation.
3.00 – The undersigned hereby accepts on the behalf of his firm all provisions and requirements of the contract documents, including but not limited to those related to time of completion and liquidated damages.
4.00 – The undersigned hereby certifies that they are authorized representative of the firm on whose behalf this proposal/bid is submitted and that they are acting at the direction and with the required approval of said firm, which is identified as follows:
Name of firm:
Address of firm:
Telephone
Number:
( ) Fax Number: ( )
Contractor’s License Number: Type:
Signed: Date:
END OF PROPOSAL/BID FORM
15.d
Packet Pg. 487 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 14 BID BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT _____________________________________________, hereinafter called Principal, and _______________________________________, hereinafter called Surety, are jointly and severally held and firmly bound unto the City of El Centro, hereinafter called Owner, in the penal sum of ______________________________ dollars ($________________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, Principal is herewith submitting a bid for the work entitled “Swarthout Park Field Lighting Project.”
NOW, THEREFORE, the condition of this obligation is such that if Principal is awarded a contract for the work, and if Principal within the time specified in the bid enters into, executes and delivers to owner an agreement in the form provided herewith, and if Principal within the time specified in the bid gives to the owner the performance bond and the payment bond on the forms provided herewith, then this obligation shall be void. If, however, Principal shall fail or refuse to furnish, execute and deliver to owner said agreement in the time stated in the bid or should fail or refuse to furnish performance bond and payment bond in the time stated in the bid, then Principal and Surety shall forfeit to Owner the penal sum hereof.
AND, IT IS HEREBY DECLARED AND AGREED that Surety shall be liable under this obligation as Principal, and that nothing of any kind of nature whatsoever that will not discharge, Principal shall operate as a release of liability of Surety.
IN WITNESS WHEREOF, we have hereunto set our hands and sealed this ________day of _______________, 202___.
BY:
BY:
Insurance companies A.M. Best Company identifying number:
END OF BID BOND
15.d
Packet Pg. 488 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 15 PROPOSAL AGREEMENT
The undersigned agrees that this bid may not be withdrawn within a period of ninety (90) days from the opening thereof, and further agrees that in case of default in executing the required contract with necessary bonds with the ten (10) days, not including Sunday, after having received notice that the contract is ready for signature, the proceeds of the check or bond accompanying his/her bid shall become the property of the City of El Centro, California.
The certified or cashier's check, cash deposit or bid bond accompanying this proposal is in the amount of ten percent (10%) or more of the aggregate amount of this bid.
The undersigned is licensed in accordance with the Laws of the State of California.
License Number: Class:
Registration Number:
Company
Business Address
Telephone Number
Fax Number
Signature Bidder Date
END OF PROPOSAL
15.d
Packet Pg. 489 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 16 CITY OF EL CENTRO
CONSTRUCTION SERVICES AGREEMENT
This CONSTRUCTION SERVICES AGREEMENT (“Agreement”), is made and effective , 2023, by and between the City of El Centro, a municipal corporation ("CITY"), and , a California Corporation ("CONTRACTOR"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
I. SCOPE OF WORK
A. CONTRACTOR shall provide all labor, materials, equipment, and services required to perform the Work as indicated in the Construction Plans and incorporated herein by this reference. Furthermore, CONTRACTOR shall perform the Work in accordance with the Payment Schedule outlined in Sections 1-23, 1-24, 1-25 and 1-26 of the General Conditions and incorporated herein by this reference.
B. All services and equipment shall be provided at the times and places designated by the CITY.
C. All days set out here are calendar days unless otherwise specified.
II. TIME FOR PROJECT COMPLETION
All of CONTRACTOR’s work on the Project shall commence within ten (10) calendar days after receiving a written Notice to Proceed from the CITY. The Project shall be completed within 120 consecutive calendar days unless earlier terminated or extended as provided in Article 12.
III. THE CONTRACT SUM
Notwithstanding any provisions of this Agreement to the contrary, CITY and CONTRACTOR mutually agree that CITY's maximum cumulative payment obligation hereunder (including, but not limited to obligation for CONTRACTOR's costs and profit), shall be dollars ($ ) for the Scope of Work which shall include
all amounts payable to CONTRACTOR for its labor, subcontracts, leases, materials, equipment, the deliverables, and costs arising from CONTRACTOR’s performance of this Agreement.
CONTRACTOR exceeds the maximum cumulative amount at its own risk and expense IV. PROGRESS PAYMENTS
A. For CONTRACTOR's full and complete performance of its obligations under this Agreement, and subject to the maximum cumulative payment obligation provisions set forth in Article 6 below, CITY shall pay CONTRACTOR in accordance with Sections 1-23, 1-24, 1-25 and 1-26 of the General Conditions.
B. CONTRACTOR shall submit invoices monthly during the term of this Agreement, based on the cost for services performed prior to the Invoice date. Invoices shall contain the following:
x Serial identification of progress bills: i.e., Progress Bill No. 1 for the first invoice, etc. x The beginning and ending dates of the billing period
x A task summary containing the original contract amount, the amount of prior billings, the total due the current period, the balance available under the Agreement and the percentage of completion
x At CITY’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours
15.d
Packet Pg. 490 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 17 spent by each person, and/ or a brief description of the work x The CONTRACTOR’s signature
C. Monthly Payment CITY shall make payments based on invoices received for services satisfactorily performed and may retain 5% of such amount. Notwithstanding, Public Contract Code Section 22300 permits the substitution of securities for any monies withheld by a public Agency to ensure performance under a contract, at the request and expense of the CONTRACTOR until completion of the term of the contract.
D. Final Payment CITY shall pay the last 5% of the total sum due pursuant to this Agreement within thirty -five (35) days after acceptance of all satisfactory work under this Agreement (which may be indicated by a Notice of Completion) or as otherwise agreed with the Contractor.
E. Contractor Claims Any Contractor claims under this Agreement are subject to the provisions of Public Contract Code Section 9204, attached and incorporated here as Exhibit “A”.
V. INDEMNITY, DEFENSE AND HOLD HARMLESS AGREEMENT
CONTRACTOR shall indemnify, defend with legal counsel approved by CITY, and hold harmless CITY, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONTRACTOR's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the CITY. Should conflict of interest principles preclude a single legal counsel from representing both CITY and CONTRACTOR, or should CITY otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the CITY its costs of defense, including without limitation reasonable legal counsels’ fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the CITY (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
CONTRACTOR obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this agreement, CONTRACTOR shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where CITY is shown to have been actively negligent and where CITY active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of CITY.
VI. PREVAILING WAGES
In accordance with the provisions of Labor Code §§1770 to 1781 as duly enacted by the State of California, the City Council has ascertained the general prevailing rate of wages applicable to the work to be done as those shown in the specifications of the work. Information on the current state prevailing wages can be obtained by contacting the State of California, Department of Industrial
15.d
Packet Pg. 491 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 18 Relations, Division of Labor Statistics and Research, 45 Fremont Street, Suite 1160, San Francisco, California, 94105, (415) 972-8628 or from the California Department of Industrial Relations’ internet website at http://www.dir.ca.gov.
California wage rates for this Project shall be in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1", for Riverside County. Wage rates shall conform to those posted at the CITY offices and the Project site. Statutory provisions for penalties for failure to pay prevailing wages or to comply with State wage and hour laws will be enforced.
The following Labor Code sections are hereby referenced and made a part of this Agreement:
1. Section 1773.8 - Travel and Subsistence Pay
2. Section 1774 - Prevailing Wage Requirement
3. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates
4. Section 1776 - Payroll Records (as applicable)
5. Section 1777.4 - Apprenticeship Requirements
6. Section 1777.5 - Apprenticeship Requirements
7. Sections 1810 and 1811 - Working Hour Restrictions
8. Section 1813 - Penalty for Failure to Pay Overtime
9. Section 1815 – Overtime Rate Requirement
VII. RECORD AUDIT
Under California Government Code, Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars ($10,000), any records or documents of both the CITY and the CONTRACTOR shall be subject to examination, audit, and/or copying at any time during regular business hours by the Auditor General for a period of three (3) years after final payment, upon oral or written request of the CITY.
VIII. CERTIFICATIONS
At the time of commencing work and throughout the Project duration, CONTRACTOR shall be in possession of a valid California State Contractor’s License with the following classifications: [Class License]
Furthermore, CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing work and throughout the Project duration, a Contractor's License, issued by the State of California, which is current and in good standing.
If CONTRACTOR is a corporation, the undersigned hereby represents and warrants that the corporation is duly incorporated and in good standing in the State of California, and that whose title is , is authorized to act for and bind the corporation.
IX. BONDING REQUIREMENTS
CONTRACTOR shall deliver to the CITY two fully executed, identical counterparts of the Performance Bond and Payment (Labor and Materials) Bond. Each bond shall be for one hundred percent (100%) of the Contract Price. The surety insurer shall be admitted to transact surety business in the State of California, in accordance with Code of Civil
15.d
Packet Pg. 492 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 19 Procedure section 995.120. Personal sureties and unregistered surety companies are unacceptable. Failure to furnish a bond within the time requirements may result in the forfeiture of the Bid Guarantee at the sole discretion of City.
X. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if the CONTRACTOR for a period of three (3) calendar days after receipt of written demand from CITY or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then the CITY may exclude the CITY from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the CITY to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the CITY, shall be a charge against the CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of said charge, or the portion thereof unsatisfied. The sureties, provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the CITY.
XI. INSURANCE
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below.
CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR shall not allow any subcontractor to commence work on any subcontract until CONTRACTOR has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to DISRICT. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. All insurance coverage and limits provided by CONTRACTOR and available or applicable under this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement limits the application of such insurance coverage.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to CITY.
A. CONTRACTOR shall provide the following types and amounts of insurance:
Without limiting CONTRACTOR’s indemnification of CITY, and prior to commencement of Work, CONTRACTOR shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY.
15.d
Packet Pg. 493 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 20 General liability insurance CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Workers’ compensation insurance CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.
Put the provisions for Umbrella Coverage back into your sample; they are used on a case by case basis depending on the size of the job:
Umbrella or excess liability insurance. Contractor shall obtain and maintain an umbrella or excess liability insurance policy that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• _A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; • _ Pay on behalf of wording as opposed to reimbursement; • _ Concurrency of effective dates with primary policies; and_ _ • Policies shall follow form to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
15.d
Packet Pg. 494 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 21 The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the CITY. The CITY will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sublimits and shall be submitted to the CITY prior to commencement of construction.
Other provisions or requirements
a. Proof of insurance CONTRACTOR shall provide endorsed certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by CITY’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
b. Duration of coverage CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. CITY and its officers, officials, employees, and agents shall continue as additional insureds under such policies. c. Primary/noncontributing Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY before the CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.
15.d
Packet Pg. 495 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 22 d. CITY’s rights of enforcement In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, CITY may cancel this Agreement.
e. Acceptable insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the CITY’s risk manager.
f. Waiver of subrogation All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its sub consultants.
g. Enforcement of contract provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.
h. Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the CONTRACTOR maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. i. Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
j. Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
k. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing. l. Separation of insureds. A severability of interests provision must apply for all additional
15.d
Packet Pg. 496 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 23 insureds ensuring that CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. m. Pass through clause. CONTRACTOR agrees to ensure that its sub consultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review.
n. CITY’s right to revise requirements. The CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90) day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the CITY and CONTRACTOR may renegotiate CONTRACTOR’s compensation.
o. Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.
p. Timely notice of claims. CONTRACTOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
q. Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
r. Claims-made limitations. The following provisions shall apply if any of the required policies are written on a claims-made basis:
i. The retroactive Date of the policy must be shown and must be before the date of the Agreement or the beginning of the contracted work.
ii. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work. iii. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a Retroactive Date that precedes the date of this Agreement, CONSULTANT must provide extended reporting coverage for a minimum of five (5) years after completion of the Agreement or the work. The CITY shall have the right to exercise, at the CONSULTANT'S sole cost and expense, any extended reporting provisions of the policy, if the CONSULTANT cancels or does not renew the coverage. iv. A copy of the claim reporting requirements must be submitted to the CITY prior to the commencement of any work under this Agreement.
XII. REGISTRATION REQUIREMENTS
Pursuant to Section 1771.1(a) of the Labor Code, CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to
15.d
Packet Pg. 497 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 24 work on public works projects. CONTRACTOR must ensure registration with the DIR that is active and in good standing.
No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
XIII. PROVISIONS REQUIRED BY LAW
Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not currently inserted, then upon application of either party the Agreement shall forthwith be physically amended to make such insertion or correction. No waiver of any term or condition of this Agreement shall be a continuing waiver thereof.
Clayton and Cartwright Acts: The CONTRACTOR and any and all subcontractors offer and agree to assign to the CITY all rights, title and interest in and to all causes of action they may have under Section 4 of the Clayton Act (15 USC Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Profession Code) arising from purchases of goods, services or materials pursuant to the public works contract or any subcontract.
Trenching: For any jobs involving trenching more than four (4) feet deep, the CONTRACTOR shall notify the CITY of hazardous materials, subsurface or latent physical site conditions different from those indicated in information about the site made available to bidders, as well as unusual site conditions and the CITY shall investigate those as required by Public Contracts Code Section 7104
XIV. SUBSURFACE HAZARDOUS MATERIALS
A. In the event trenches or other excavations extend deeper than four (4) feet below the surface, the CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the CITY in writing of any:
1. Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law.
2. Subsurface or latent physical conditions at the site differing from those indicated.
3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Work or the character provided for in the CONTRACT.
15.d
Packet Pg. 498 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 25 B. Upon receipt of said notification the CITY will investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR's cost of or the time required for performance of any part of the work, the CITY will issue a change order under the procedures described in the General Conditions.
C. In the event that a dispute arises between the CITY and the CONTRACTOR whether the conditions materially differ, or involve hazardous waste or cause a decrease or increase in the CONTRACTOR's cost of or time required for performance of any part of the work, the CONTRACTOR shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all work to be performed under the Agreement. The CONTRACTOR shall retain any and all rights provided either by Agreement or by law that pertain to the resolution of disputes and protests between the contracting parties XV. LIQUIDATED DAMAGES
Pursuant to Government Code Section 53069.85, if work is not completed within the contract time or in strict accordance with the Project Schedule, it is understood, acknowledged and agreed that the CITY will suffer damage. It is therefore agreed that the CONTRACTOR shall pay to the CITY the sum of Five Hundred Dollars ($500.00) for each and every calendar day of delay beyond the Contract Time, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule, or beyond the time indicated in the Project Schedule for any individual Contract activity.
CONTRACTOR expressly understands, acknowledges and agrees that such liquidated damages can and shall be imposed if the CONTRACTOR does not meet each and every aspect of any activity schedule, completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule. If the CITY accepts work or makes any payment under this Agreement after a default by reason of delays, the acceptance of such work and/or payment(s) shall in no respect constitute a waiver or modification of any provisions regarding Contract Time, a completion schedule, the Project Schedule or the accrual of liquidated damages. In the event the same is not paid, the CONTRACTOR further agrees that the CITY may deduct the amount thereof from any money due or that may become due the CONTRACTOR under the Agreement. This Article does not exclude recovery of damages under provisions of the Contract Documents, and is expressly in addition to the CITY’s ability to seek other damages.
XVI. COMPONENT PARTS OF THE CONTRACT
A. The complete Agreement shall consist of the following component parts, to-wit: This Agreement; Amendments or Change Orders, if any; Addenda, if any; the solicitation and the accepted CONTRACTOR’s bid proposal, dated , including all required attached documents; each of the component parts of the "SWARTHOUT PARK FIELD LIGHTING PROJECT”, dated ; and any and all attachments to this Agreement.
This instrument and the other documents mentioned above in this Article 1 constitute the complete and exclusive statement of the term(s) and condition(s) of the Agreement between CITY and CONTRACTOR and it supersedes all prior representations, understandings, and communications. The invalidity in whole or in part of any term or condition of this Agreement shall not affect the validity of other term(s) or condition(s).
B. In the event of any discrepancy between or among the portions of the Agreement
15.d
Packet Pg. 499 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 26 Documents, the following shall take precedence: (a) Change Orders/ Amendments/ Modifications; (b) this Agreement; (c) the accepted CONTRACTOR’s bid/proposal; (d) Addenda, if any; and (e) the solicitation, dated __________, 2023.
C. CITY's failure to insist in any one or more instances upon CONTRACTOR's performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to such performance or to future performance of such term(s) or condition(s) and CONTRACTOR's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon CITY except when specifically authorized by signed written amendment to this Agreement issued in accordance with the provisions of this Agreement.
D. All days set out here shall be calendar days unless otherwise specified.
XVII. ENTIRE CONTRACT
This Contract constitutes the entire contract of the parties. No other Contracts or contracts, whether oral or written, pertaining to the work to be performed, exist between the parties.
This Contract can be modified only by an amendment in writing, signed by both parties.
No waiver of any term or condition of this Agreement shall be a continued waiver thereof.
CONTRACTOR CITY
City of El Centro
By: ____________________________ By: ____________________________ Title: __________________________ Title: __________________________ Date: __________________________ Date: __________________________ ATTACHMENTS:
Non-collusion Affidavit Labor and Materials Bond
Faithful Performance Bond
15.d
Packet Pg. 500 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 27 FAITHFUL PERFORMANCE BOND
Whereas, CITY OF EL CENTRO, State of California, and ____________ (hereinafter designated as “Principal”) have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated ____, 2023, and identified as project ____, is hereby referred to and made a part hereof; and Whereas, said Principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement.
Now, therefore, we, the Principal and ____, as surety, are held and firmly bound unto the CITY OF EL CENTRO (hereinafter called (“City”), in the penal sum of _________________ dollars ($____) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless CITY OF EL CENTRO, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications.
In witness whereof, this instrument has been duly executed by the principal and surety above named, on ____, 2023.
_______________________________
Principal
By: ____________________________
_______________________________
Surety
By: ____________________________
Its Attorney-in-Fact
END OF FAITHFUL PERFORMANCE BOND
15.d
Packet Pg. 501 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 28 LABOR AND MATERIALS BOND
Whereas, the CITY OF EL CENTRO, State of California, and ____ (hereinafter designated as “the Principal”) have entered into an agreement whereby the principal agrees to install and complete certain designated public improvements, which agreement, dated ____, 2023, and identified as project ____, is hereby referred to and made a part hereof; and Whereas, under the terms of the agreement, the Principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of El Centro to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code.
Now, therefore, the Principal and the undersigned as corporate surety and admitted surety insurer, are held firmly bound unto the City of El Centro (“City”) and all contractors, subcontractors, laborers, material suppliers, and other persons employed in the performance of the agreement and referred to in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code in the sum of __________ dollars ($____), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to this work or labor, that the surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing this obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration, or addition.
In witness whereof, this instrument has been duly executed by the principal and surety above named, on ____, 2023.
_______________________________ _____________________________ Principal Surety
By: ____________________________ By: __________________________ Its Attorney-in-Fact
END OF LABOR AND MATERIALS BOND
15.d
Packet Pg. 502 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 29 WORKERS’ COMPENSATION INSURANCE CERTIFICATE
The Contractor shall execute the following form as required by Labor Code §§1860 and 1861:
I am aware of the provisions of section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions before commencing the performance of the work of this contract.
_____________________________ ____________________________ Date Contractor’s Name
____________________________
Contractor’s Signature
____________________________
Title
ATTEST:
By _____________________________
Signature
_____________________________
Title
END OF WORKERS’ COMPENSATION INSURANCE CERTIFICATE
15.d
Packet Pg. 503 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 30 DRUG/ALCOHOL TESTING REQUIREMENTS
The Contractor shall execute the following form as required by the Federal Drug and Alcohol, section 49 CFR Part 382.
I agree to comply with the provisions of Federal Omnibus Transportation Employee Testing Act of 1991, and that I will administer a program of alcohol and drug testing of all commercial vehicle operators, as required by Federal Regulations.
Contractor certifies compliance with the City of El Centro’s Drug and Alcohol Free Workplace Policy as a condition of the State Drug-Free Workplace Act of 1990 (Government Code section 8350 et seq.) and the Federal Drug Free Workplace Act of 1988 (41 U.S.C.A. section 701 et seq.) In addition, Contractor agrees to submit a copy of its own drug free workplace policy.
Dated_____________________________ __________________________________ Contractor’s Name
__________________________________
Contractor’s Signature
__________________________________
Title
END OF DRUG/ALCOHOL TESTING REQUIREMENTS
15.d
Packet Pg. 504 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 31 SUBCONTRACTORS LISTING
The Bidder shall list below the name and the location of the place of business of each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the work or improvement, or a subcontractor licensed by the State who, under subcontract to the prime contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of one percent (.005%) of the prime contractor’s total bid. The Bidder shall also list below the portion of the work which will be done by each subcontractor under this Contract. The prime contractor shall list only one subcontractor for each portion of the WORK.
If the Bidder does NOT intend to use ANY subcontractors, then state “NONE” in the first block.
The Bidder’s attention is directed to the provisions of the section entitled “Subcontract Limitations” of the Supplementary General Conditions, which stipulates the percent of the WORK to be performed with the Bidders’ own forces. Failure to comply with this requirement will render the Bid non-responsive and may cause its rejection.
PORTION OF WORK
NAME
PLACE OF BUSINESS
ADDRESS/TELEPHONE NO.
STATE CONTRACTOR’S
LICENSE AND
DIR REGISTRATION NO.
15.d
Packet Pg. 505 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 32 END OF SUBCONTRACTORS LISTING
15.d
Packet Pg. 506 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 33 NON-COLLUSION DECLARATION FOR CORPORATION
The undersigned declares:
I am the of , the party making the foregoing bid.
The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham.
The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true.
The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on [date], at [city], [state].”
END OF NONCOLLUSION DECLARATION FOR CORPORATION
15.d
Packet Pg. 507 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 34 CORPORATE CERTIFICATION OR PARTNERSHIP INFORMATION
Name of Corporation or Partnership
_________________________________________________
State of Incorporation
_____________________________________________________________ List names and addresses of each partner, or titles, names and business addresses of President, Secretary and Treasurer.
____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Date_____________________________ Contractor____________________________ Signature_________________________ Title________________________________ ATTEST:
________________________________________
Signature by
________________________________________
Title
END OF CORPORATE CERTIFICATION
15.d
Packet Pg. 508 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 35 CONTRACTOR’S CERTIFICATION OF QUALIFICATION
FOR LICENSE CLASSIFICATION
After award of the contract, the Contractor, whether an individual, co-partnership, limited partnership, corporation, or any other combination or organization, shall execute the following form:
1. If an individual, I hereby certify that I am, or my responsible managing employee ________________________ (insert name) is, qualified for the license classification called for in these contract documents.
2. If a co-partnership or limited partnership, the general partner hereby certifies that the general partner _______________________________ (insert name), or responsible managing employee __________________________________ (insert name), is qualified for the license classification called for in these contract documents.
3. If a corporation, or any other combination or organization, the responsible managing officer _______________________________ (insert name), or a responsible managing employee ________________________________ (insert name), is qualified for the license classification called for in these contract documents.
If the individual who qualifies the Contractor for the license classification called for in these contract documents changes during the progress of the work, then Contractor shall, within seven (7) days of any such change, notify the Director of Public Works in writing of such change, including the name, license number and status of the individual.
For the purpose of this Certification, a responsible managing employee shall mean an individual who is a bona fide employee of the Contractor and is actively engaged in the classification of work for which that individual is the qualifying person on behalf of the Contractor under California law.
DATED:____________________ CONTRACTOR:___________________________________ SIGNATURE:_____________________________ TITLE:______________________________ ATTEST:
SIGNATURE BY:___________________________________________ TITLE:____________________________________________________
15.d
Packet Pg. 509 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 36 GENERAL CONDITIONS
1-01 DEFINITIONS.
a) The word “City” shall mean the City of El Centro, California. b) The term “City Council” shall mean the City Council of the City of El Centro. c) The word “Contractor” shall mean the party entering into the contract with the City for the performance of work required by these specifications, and legal representatives of said party, or agent appointed to act for said party in the performance of the work. Said party is referred to throughout the contract documents as if of the singular number and the masculine gender.
d) The term “Days” shall mean calendar days unless otherwise specifically provided. e) The term “Director of Community Services” shall mean the City of El Centro Community Services Director, acting either directly or through properly authorized agents, such agents acting within the scope of the particular duties entrusted to them. f) The word GREENBOOK shall mean the Standard Specifications for Public Works Construction contained in the latest Edition, as written and promulgated by the Joint Cooperative Committee of the Southern California Chapter of the American Public Works Association and the Southern California District of the Associated General Contractors of California. Copies of these Standard Specifications are available from the publisher, Building News, Incorporated, 990 Park Center Drive, Suite E, Vista, CA 92081 (760) 734- 1113.
1-02 CONTRACT DOCUMENTS
The Notice of Inviting Bids, the Instructions to Bidders, the Proposal, the Specifications, and the Drawings, together with the Agreement and all documents referenced there, constitute the Contract. These Contract documents are complimentary, and what is called for in any one (1) shall be as binding as if called for in all. The intention of the documents is to require a complete and finished piece of work. The Contractor at its sole cost and expense shall perform all labor and services and shall furnish all materials, tools, equipment, and facilities necessary for the proper execution of the work, with the exception of such items as are definitely set forth in the specifications or the drawings to be furnished by the City. Anything shown in the drawings and not in the specifications or in the specifications and not in the drawings shall be performed by the Contractor as though shown in both the drawings and the specifications. 1-03 AUTHORITY OF THE COMMUNITY SERVICES DIRECTOR
The Community Services Director shall give all orders and directions contemplated under the contract; shall determine the adequacy of the Contractor’s methods, plans, and appurtenances; shall determine in all cases the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for; shall determine all questions in relation to said work and the construction thereof; and shall decide in all cases every question, which may arise relative to the fulfillment of this contract on the part of the Contractor. Should any discrepancy appear or any misunderstandings arise as to the import of anything contained in the specifications or drawings, the matter shall be referred to the Community Services Director, who shall decide the same in accordance with the true intent and meaning as construed by him, and his decision shall
15.d
Packet Pg. 510 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 37 be binding on the Contractor. Any differences or conflicts which may arise between the Contractor and other contractors of the City in regard to their work shall be adjusted and determined by the Community Services Director.
1-04 ACCESS TO WORK
The Community Services Director, her assistants, inspectors, agents, and other employees shall at all times and for any purposes have access to the work and the premises used by the Contractor, and the Contractor shall provide safe and proper facilities therefor. 1-05 LINES AND GRADES
All distances and measurements are given and will be made in horizontal plane. Grades are given from the top stakes, or nails, unless otherwise noted on the plans.
Three consecutive points shown in the same rate of slope must be used in common, in order to detect any variation from a straight grade, and in case any such discrepancy exists, it must be reported to the Community Services Director. If such a discrepancy is not reported to the Community Services Director, the Contractor shall be responsible for any error in the finished work.
Services Assistance Notice: The Contractor shall give at least twenty-four (24) hours’ notice in writing when he will require the services of the Community Services Director for laying out any portion of the work. The Contractor shall furnish the Community Services Director such facilities and labor necessary for marking and maintaining points and lines as he may require. Labor furnished by the Contractor for such purposes will be paid for as extra work.
The Contractor will preserve all stakes and points set for lines, grades or measurements of the work in their proper places until authorized to remove them by the Community Services Director.
All expenses incurred in replacing stakes that have been removed without proper authority shall be paid by the Contractor.
1-06 LEGAL ADDRESS OF CONTRACTOR
The address given in the Contractor’s proposal on which the contract is founded is hereby designated as the place to which all notices, letters, and other communications to the Contractor shall be mailed or delivered. The mailing to or delivering at the above-named place of any notice, letters, or other communication to the Contractor shall be deemed sufficient service thereof upon the Contractor. The date of said service shall be the date of such mailing or delivery. Such address may be changed at any time by a written notice signed by the Contractor and delivered to the Community Services Director.
1-07 CONTRACTOR'S RESPONSIBILITIES
(a) The Contractor shall be responsible for safe, efficient, and adequate methods and equipment during the progress of the work so as to secure the safety of the workers, the quality of work required and the required rate of progress. (b) The Contractor shall bear all losses resulting to him on account of the amount of character of the work, or from any unforeseen obstructions or difficulties, which may be encountered, on account of the weather, floods, or other causes.
15.d
Packet Pg. 511 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 38 (c) The Contractor shall assume the defense of and indemnify and save harmless the City and its officers and agents from all claims of any kind arising from his own negligence or that of his agents in the performance of the contract.
(d) The Contractor shall be responsible for any materials furnished him and for the care of all work until its completion and final acceptance, and he shall at his own expense replace damaged or lost material and repair damaged parts of the work, or the same may be done at his expense by the City.
(e) During the progress of the work the Contractor shall keep the premises occupied by him in a neat and clean condition, and free from any unsightly accumulation of rubbish, unused material, concrete forms, and other equipment and materials belonging to him or used under his direction during construction, and in the event of his failure to do so, the same may be removed by the City at the expense of the Contractor. (f) Traffic Control. The Contractor shall be responsible for maintaining traffic control at all times under the guidelines of the California Manual on Uniform Traffic Control Devices (“California MUTCD”). Contractor shall submit two (2) traffic control plans in a minimum of two (2) business weeks for pre-approval by the Director of Public Works before starting construction work.
1-08 CONTRACTOR TO FURNISH INFORMATION
(a) Before proceeding with the erection of the construction plant, and other temporary structures, the Contractor shall furnish the Community Services Director with information and drawings of all such structures as may be required. (b) Drawings and prints in such detail as may be required, or articles, machinery, or fabricated materials entering into permanent construction which are by these specifications required to be furnished by the Contractor and of which detailed drawings are not furnished by the City shall be submitted by the Contractor for approval and shall become the property of the City. Such approval shall not, however, operate to waive or modify any provision or requirement contained in these specifications.
1-09 EXAMINATION OF WORK
Bidders must examine the location, physical conditions and surrounding of the proposed work and judge for themselves the nature of the excavations to be made and the work to be done.
The Contract documents for the work show conditions as they are supposed or believed by the Engineer to exist, but it is not intended or to be inferred that the conditions as shown therein constitute a representation or warranty, express or implied, by the City or any of it officers or employees, that such conditions are actually existent, nor shall the Contractor be relieved of the liability under his contract, nor shall the City or any of its officers or employees be liable for any loss sustained by the Contractor as a result of any variance between conditions shown in the Contract Documents and the actual conditions revealed during the progress of the work or otherwise.
1-10 PLANS AND DRAWINGS
All authorized alterations affecting the requirements and information given on the approved plans shall be in writing. No changes shall be made of any plan or drawing after the same has been
15.d
Packet Pg. 512 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 39 approved by the Community Services Director, accept by direction of the Community Services Director.
Deviations from the approved plans, as may be required by the exigencies of construction, will be determined in all cases by the Community Services Director and authorized in writing.
Working drawings or plans for any structure not included in the plans furnished by the Community Services Director shall be approved by the Community Services Director before any work involving these plans shall be performed, unless approval is waived in writing by the Community Services Director.
It is mutually agreed, however, that approval by the Community Services Director of the Contractor’s working plans does not relieve the Contractor of any responsibility for accuracy of dimensions and details, and that the Contractor shall conform to the approved plans and specifications.
1-11 PERSONAL ATTENTION
The Contractor shall give its personal attention constantly to the faithful prosecution of the work, and shall be present, either in person or by a duly authorized and competent representative, on the site of the work, continually during its progress, to receive directions or instructions from the Community Services Director. Whenever the Contractor is not present on any part of the work where it may be desired to give directions, orders may be given by the Community Services Director, and shall be received and obeyed by the superintendent or foreman who may have charge of the particular part of the work in reference to which orders are given. 1-12 CONTRACTOR CLAIMS
Any claim by the Contractor regarding this Contract is subject to the provisions of Public Contract Code Section 9204 attached and incorporated as Exhibit “D”. 1-13 RIGHT-OF-WAY
The right-of-way for the work to be constructed will be provided by the City. The Contractor shall make his own arrangements and pay all expenses for additional area required by him outside of the limits of the right-of-way, unless otherwise provided in the special conditions. 1-14 TIME AND ORDER OF WORK
(a) The Contractor shall at all times employ such force, plant, materials and tools as will be sufficient, in the opinion of the Community Services Director, to complete the work or any separable portions thereof in accordance with a progress schedule and within the time limit fixed by the contract. If the Contractor should fail to employ sufficient force, plant, materials and tools or to maintain adequate progress he may, after such failure, be required to increase his progress at any point or points or to modify his plans and procedures in such manners and to such extent as the Community Services Director may direct, any extension of such shall not relieve the Contractor from the necessity of maintaining the required progress. In case of an extension by the Community Services Director of the time for the completion of the contract, as hereinafter provided a revised schedule of progress may be prescribed in accordance with such extension of time. (b) The time in which the various portions and the whole of the contract are to be performed and the work is to be completed is of the essence of the contract.
15.d
Packet Pg. 513 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 40 1-15 ASSIGNMENT FORBIDDEN
The Contractor shall not assign, transfer, convey, or otherwise dispose of this contract, or of his right, title or interest in or to the same or any part thereof, without the previous consent in writing of the Community Services Director and he shall not assign, by power of attorney or otherwise, any of the monies to become due and payable under the contract unless by and with the like consent signified in like manner. If the Contractor shall, without such previous written consent, assign, transfer, convey or otherwise dispose of the contract or of his right, title or interest therein, or of any of the monies to become due under the contract, to any other person, company or other corporation, the contract may at the option of the City be terminated and revoked, and the City shall thereupon be relieved and discharged from any and all liability and obligations growing out of the same to the Contractor, and to his assignee or transferee.
No right under the contract, nor any right to any money to become due hereunder, shall be asserted against the City in law or equity by reason of any so-called assignment of the contract, or any part thereof, or by reason of the assignment of any monies to become due hereunder, unless authorized as aforesaid by the written consent of the Community Services Director. 1-16 SUBLETTING
The Contractor shall give his personal attention of the fulfillment of the contract and shall keep the work under his control. Subcontractors will not be recognized as such, and all persons engaged in the work of construction will be considered as employees of the Contractor, and their work shall be subject to the provisions of the contract and specifications. Where a portion of the work sublet by the Contractor is not being prosecuted in a manner satisfactory to the Community Services Director, the subcontractor shall be removed immediately on the recommendation of the Community Services Director and shall not again be employed on the work. 1-17 SUSPENSION OF CONTRACT
(a) If the work to be done under the contract shall be abandoned by the Contractor, or if the Contractor shall make a general assignment for the benefit of his creditors or be adjudicated a bankrupt, or if a receiver of his property or business is appointed by a court of competent jurisdiction, or if this contract shall be assigned by him otherwise than hereinbefore specified, or if at any time the Community Services Director shall be of the opinion that the performance of the contract is unnecessarily or unreasonably delayed, or that the Contractor is willfully violating any of the conditions or covenants of the contract, or of the specifications, or is executing the same in bad faith or not in the time named in the contract for its completion, or within the time to which the completion of the contract may have been extended as hereinbefore provided, the Community Services Director, acting on behalf of the City, may, by written notice, instruct the Contractor to discontinue all work or any part thereof under this contract.
(b) When such written notice is served upon the Contractor as provided in section 1-06, he shall immediately discontinue the work or such part thereof as is covered by the notice and shall not resume the same except by written instructions from the Director of Public Works. In any such case, the City may take charge of the work and complete it by a new contract or by force account. In so doing, the City may take possession of and use any of the materials, plant, tools, equipment, supplies and property of every kind provided by the Contractor for the purposes of his work. The City may procure other materials and provide labor for the completion of same, or contract therefore and charge the expense of completion by either method to the Contractor. These charges shall be deducted from
15.d
Packet Pg. 514 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 41 such monies as may be due or may at any time hereafter become due the Contractor under and by virtue of this contract or any part thereof. In case such expense shall exceed the amount which would have been due the Contractor under the contract if the same had been completed by him, he shall pay the amount of such excess to the City; and in case such expense shall be less than the amount which would have been payable under this contract if the same had been completed by the Contractor, he shall have no claim to the difference except to such extent as may be necessary, in the opinion of the Community Services Director, to reimburse the Contractor or the Contractor's sureties for any expense, properly incurred for plant, equipment, materials, supplies and labor devoted to the prosecution of the work of which the City shall have received the benefit and which shall not have been otherwise paid for by the City. In computing such expense so far as it shall be deducted from the depreciated value thereof at the time taken over by the City and the difference shall be considered as an expense. Evidence of such expense satisfactory to the Community Services Director, shall be required, and all necessary estimates and appraisements shall be made by him.
When any particular part of the work is being carried on for the City by contract or otherwise, under the provisions of this section, the Contractor shall continue the remainder of the work in conformity with the terms of his contract, and in such manner as in nowise to hinder or interfere with the persons or workers employed, as above provided, by the City, by contract or otherwise to do any part of the work or to complete the same under the provisions of this section.
1-18 SUSPENSION OF WORK – EXTENSION OF TIME - NO EXTRA COMPENSATION (a) The Community Services Director shall have the authority to suspend the work wholly or in part, for such period as she may deem necessary, due to unsuitable weather, or to such other conditions as are considered unfavorable for the suitable prosecution of the work or for such time as she may deem necessary due to the failure on the part of the Contractor to carry out orders given or to perform any provisions of the work. The Contractor shall immediately obey such order of the Community Services Director. (b) Applications for extension of time must be made promptly in writing, stating cause. No delay shall be made the basis in any application for extension of time, unless such delay and the cause thereof shall have been called to the attention of the Community Services Director in writing within the ten (10) days from the beginning of such delay. Applications for extension of time shall be addressed to the Community Services Director. (c) Permitting the Contractor to continue and finish the work, or any part of it, after the date to which the time fixed for its completion may have been extended, shall in nowise operate as a waiver on the part of the City or any of its rights under this contract. (d) The Contractor shall receive no compensation on account of any suspension of the work either in whole or in part or for any delay or hindrance herein mentioned except as provided in the Detail Specifications or as otherwise required by law. 1-19 FAILURE TO COMPLETE ON TIME AND LIQUIDATED DAMAGES (a) The Contractor shall pay for each and every day, including Sundays and legal holidays that they shall be in default in completing the whole work to be done under this contract, the sum named in the Special Provisions, which sum is by the execution of the Agreement mutually agreed upon as liquidated damages which the City will suffer by reason of such
15.d
Packet Pg. 515 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 42 default. The City shall have the right to deduct the amount of such damages from any monies due or to become due the Contractor under this contract. (b) It is further agreed that in case the work called for under the contract is not finished and completed in all parts and requirements within the time specified, the City Council shall have the right to extend the time for completion or not, as may seem best to serve the interest of the City; and if it decides to extend the time limit for the completion of the contract, it shall further have the right to charge to the Contractor, his heirs, assigns or sureties and to deduct from the final payment for the work, all or any part, as it may deem proper of the actual cost of engineering, inspection, superintendence and other overhead expenses which are directly chargeable to the contract and which accrue during the period of such extension, except that the cost of final surveys and preparation of final estimate shall not be included in such charges.
(c) The Contractor shall not be assessed with liquidated damages nor the cost of engineering and inspection during any delay in the completion of the work caused by the acts of God or of the public enemy, acts of the City, fire, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather or delays of subcontractors due to such causes; provided, that the Contractor shall within ten (10) days from the beginning of any such delay notify the Community Services Director in writing of the causes of delay, who shall ascertain the facts and the extent of delay, and his findings of the facts thereon shall be final and conclusive.
1-20 CHANGES
(a) If either the Community Services Director or the Contractor on account of conditions which develop during the progress of the work finds it impracticable to comply strictly with these specifications, the Community Services Director may prescribe a modification of requirements of methods of work. For such purposes, the Community Services Director may at any time during the life of the contract, by written order make such changes as he shall find necessary in the design, line, grade, form, location, dimensions, plan or material of any part of the work or equipment hereinafter specified, or in the quantity or character of the work or equipment to be furnished. If such changes increase or diminish the quantity or amount of work to be done, they shall not constitute the basis for a claim for damages or anticipated profits on the work that may be dispensed with; provided, that if such changes or alterations render useless, any work already done or materials already furnished or used in the work, the Community Services Director shall make reasonable allowance therefore, which action shall be binding upon both parties. (b) In the event of increasing or decreasing of work, the total amount of work actually done or materials or equipment furnished shall be paid for according to the unit price established for such work under the contract, wherever such unit price has been established. In the event no prices are named in the contract to cover such changes or alteration, the cost of such changes shall be covered as hereinafter provided for extra work.
(c) The City reserves the right to increase or decrease the quantity of any item or portion of work or to omit portions of the work as may be deemed necessary or expedient by the Community Services Director.
1-21 EXTRA WORK
15.d
Packet Pg. 516 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 43 (a) If during the performance of the contract, it shall, in the opinion of the Community Services Director, become necessary or desirable for proper completion of the contract to order work done or materials or equipment furnished which in the opinion of the Community Services Director are not susceptible of classification under the bid items, the Contractor shall do and perform such work and furnish such materials and equipment as extra work, as hereinafter provided. All extra work shall be ordered in writing before it is started. No extra work shall be paid for unless ordered in writing. (b) Extra work will ordinarily be paid for at a lump sum or unit price agreed upon in writing by the Community Services Director and the Contractor before the extra work shall be ordered.
(c) Whenever in the judgment of the Community Services Director extra work or extra material, as the case may be, is not of like character to and is not susceptible of classification under the bid items of the contract as specified, and it is impracticable because of the nature of the work, or for any other reason to fix the price before the extra work order shall be issued, extra work and material, when furnished by the Contractor, shall be paid for at actual necessary cost of materials, supplies, labor (including foremen’s wages), Workers’ Compensation insurance, contributions made to the State as required by the provisions of the Unemployment Insurance Act, Chapter 352, Statutes of 1935, as amended, taxes paid to the Federal government as required by The Social Security Act, approved August 14, 1935, as amended and the reasonable value of the use of equipment for the actual time it is used, all as determined by the Director of Public Works, plus fifteen percent (15%) to cover the following:
Profit
General Expenses
All insurance except Workers’ Compensation insurance
Excise taxes
Property taxes
Bond premiums
License and inspection fees imposed by any governmental authority Any and all other items of expense not specifically mentioned under subsection (c) herein
The Community Services Director determination and certification of said actual necessary cost shall be binding and conclusive on the Contractor, and the Community Services Director shall be deemed the arbiter to determine the cost of such work. (d) If any work or materials be ordered under this section on a cost-plus basis, the Contractor shall, at the times directed during the performing of the work or the furnishing of the materials, render to the Community Services Director, written reports in prescribed form, showing all items that may enter into the cost, the quantity and the character of each such material, from whom purchased and the net amount paid or to be paid therefore, and such other information as directed. If required, the Contractor shall produce any books, vouchers, other records, or memoranda, which will assist the Community Services Director in determining the true, necessary cost of the work and materials to be paid for. (e) Any extra work performed hereunder shall be subject to all the provisions of the contract and the Contractor's sureties shall be bound with reference thereto as under the original contract.
1-22 COST BREAKDOWN
15.d
Packet Pg. 517 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 44 Within ten (10) days after commencing work, the Contractor shall submit, to the Community Services Director, a cost breakdown in duplicate of all unit and lump sum prices under the contract. The breakdown, as approved, may be used by the Community Services Director to verify the fair value of the work for progress payments. 1-23 PROGRESS ESTIMATES
The Community Services Director shall, on or about the fifth (5th) day of each calendar month, except as provided in section 1-23, make in writing and certify an estimate such as in her/his opinion shall be just and fair, of the amount and value of the work done by the Contractor and of the amount and value of all acceptable materials furnished and delivered by the Contractor to the site and not used up to that time in the performance of the contract. To the figure thus arrived at, shall be added any amounts due the Contractor for extra work and the amount of any approved claims for extra cost to the date of the progress estimate.
A deduction of five percent (5%) shall be made from the estimated value of the work done and fifty percent (50%) of the value of the materials so estimated to have been furnished and delivered and unused, and from the remainder there shall be further deducted any amounts due the City from the Contractor for supplies or materials furnished or services rendered and any The other amounts that may be due the City under the terms of the contract. From the balance thus determined shall be deducted the amount of all previous payments and the remainder shall constitute the progress estimate for that month.
Such progress estimates shall not be required to be made by strict measurement, but they may be made by measurement or by estimation, or partly by one method or partly by the other, and it shall be sufficient if they are approximate only.
Pursuant to Public Contract Code §22300, the Contractor has the option of substituting securities for any money that is withheld under this section.
1-24 PROGRESS ESTIMATES MAY BE WITHHELD
The progress estimates provided for in section 1-23 hereof may at any time be withheld or reduced if, in the opinion of the Community Services Director, the Contractor is not diligently and efficiently endeavoring to comply with the intent of the contract, or if the Contractor shall fail to pay his labor and material bills as they become due.
1-25 PROGRESS PAYMENTS
(a) Upon each progress estimate being made and certified in writing, the City shall, within fifteen (15) days after the date of such estimates, except as set forth in subsection (b) hereof, pay to the Contractor the amount stated in such estimates to be due the Contractor; provided, however, that the City may at all times reserve and retain from such progress payments, in addition to the retained percentage and other amounts above mentioned to be deducted in computing the progress estimated, any sum or sums which by the terms hereof, or of any law of the State of California, it is or may be authorized or required to reserve or retain; and provided further, that no progress estimate or progress payment shall constitute an acceptance of the work or any portion thereof. The percentage deducted as above set forth shall become due and payable with and as a part of the final payment to be made as hereinafter provided.
15.d
Packet Pg. 518 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 45 (b) In the event the contract or any part thereof shall be suspended as provided in section 1- 17, the retained percentage as provided in section 1-23, shall become the sole and absolute property of the City to the extent necessary to repay to the City any excess in the cost of the work above the contract price. After issuance of notice to discontinue work, no payments upon progress estimates or otherwise shall thereafter be made the Contractor for the work covered by said notice until completion of the work. 1-26 FINAL ESTIMATE AND PAYMENT
(a) Whenever in the opinion of the Community Services Director the Contractor shall have completely performed the contract on his part, the Community Services Director will submit to the Contractor a written statement of the final quantities of contract items for inclusion in the final estimate. The Contractor will be expected to submit his written approval of said proposed final quantities within five (5) days of receipt of the Community Services Director’s statement, or in the event the Contractor disagrees with such written statement, shall within said period of five (5) days file a written statement of all claims, which he intends to present.
(b) Upon receipt from the Contractor of written approval of the final quantities or such written statement of his claims, the Community Services Director shall make in writing and certify to the City Clerk an estimate in which he shall state, from actual measurements, the whole amount of work done by the Contractor and also the value of such work under and according to the terms of the contract. Within ten (10) days after the date of receipt of the aforesaid approval or state of claims, the Community Services Director shall cause to be filed, on behalf of the City, in the Office of the Imperial County Recorder, a Notice of Completion of the work herein agreed to be done by the Contractor. On the expiration of thirty-five (35) days after the filing of such notice of completion of the work, the City shall pay to the Contractor the amount remaining after deducting from the amount of value stated in the first mentioned estimate all prior payments to the Contractor and all amounts to be kept and retained under the provisions of the contract. (c) All prior estimates upon which partial payments have been made shall be subject to correction in the final estimate. The final estimate and payments made thereunder shall be final and conclusive upon the Contractor.
1-27 RECOVERY OF DAMAGES
The making of an estimate and payment in accordance therewith shall not preclude the City from demanding and recovering from the Contractor such damages as it may sustain by reason of his failure to comply with the specifications.
1-28 FINAL PAYMENT TERMINATES LIABILITY
The acceptance by the Contractor of the final payment aforesaid shall be a release to the City and its agents from all claim and liability to the Contractor for anything done or furnished for or relating to the work or for any act or neglect of the City or of any person relating to or affecting the work except the claim against the City for the remainder, if any, of the amount kept or retained as provided in section 1-31.
1-29 NO PERSONAL LIABILITY
15.d
Packet Pg. 519 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 46 No agent of the City shall be personally responsible for any liability arising under the contract. No claims shall be made or filed and neither the City nor any of its agents shall be liable for or held to pay any money, except as specifically provided in the contract. 1-30 MONIES MAY BE RETAINED
The City may keep any monies which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefore, to the payment of any expense, losses or damages as determined by the Community Services Director incurred by the City for which the Contractor is liable under the contract.
1-31 UNPAID CLAIMS
If, upon or before the completion of the work herein agreed to be performed or at any time prior to the expiration of the period within such claims of liens may be filed for the record as prescribed by Civil Code §§ 9350 et seq,, any person or persons claiming to have performed any labor or furnished any material, supplies or services toward the performance or completion of this contract, or that they have agreed to do so, shall file with the City a verified statement of such claim, stating in general terms the kind of labor and materials and the name of the person to or for whom the same was done or furnished, or both, together with a statement that the same has not been paid or if any person or persons shall bring against the City or against any agent or agents thereof any action to enforce such claim, the City shall until the discharges thereof withhold from the monies under its control so much of said monies due or to become due the Contractor under this contract as shall be sufficient to satisfy and discharge the amount in such notice or under such action claimed to be due, together with the costs thereof; provided that if the City shall in its discretion permit the Contractor to file such additional bonds as is authorized by Civil Code §9364, in a penal sum equal to one hundred twenty-five percent (125%) times the amount of said claim, said monies shall not thereafter be withheld on account of such claim. 1-32 ADDITIONAL SURETY
If during the continuance of the contract, any of the sureties upon the faithful performance bond in the opinion of the Community Services Director are/or become insufficient, he may require additional sufficient sureties which the Contractor shall furnish, to the satisfaction of the Community Services Director, within fifteen (15) days after notice and in default thereof the contract may be suspended and the work completed as provided in section 1-17 hereof. 1-33 PREVAILING RATE OF PER DIEM WAGES
The City has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of worker or mechanic needed to execute the contract and has specified same in the Notice of Inviting Bids which is attached hereto and made a part of the contract. The Contractor shall forfeit as a penalty to the City of not more than fifty dollars ($50) for each laborer, worker or mechanics employed for each calendar day or portion thereof, such laborer, worker or mechanic is paid less than the required rates for any work done under the contract by him or by any subcontractor under him in violation of the provisions of the California Labor Code.
1-34 PAYMENT OF WAGES
The issuance as payment for wages of any evidence of indebtedness is prohibited unless the same is negotiable and payable on demand without discount. Wages must be paid at least semimonthly on regular pay days established in advance, and shall include all amounts for labor
15.d
Packet Pg. 520 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 47 or services performed by employees of every description as required under the provisions of the California Labor Code.
1-35 EIGHT (8) HOUR LAW
The Contractor shall comply with all applicable provisions of Labor Code §§1810 to 1816, inclusive, relating to working hours. The time of service of any laborer, worker or mechanic employed on the work shall be limited and restricted to eight (8) hours during any one (1) calendar day, except in cases of an extraordinary emergency caused by fire, flood or danger to life or property and the Contractor shall forfeit as a penalty to the City of twenty-five dollars ($25) for each such laborer, worker or mechanic employed in the execution of this contract by him or any subcontractor under him for each calendar day during which such laborer, worker or mechanic is required or permitted to labor more than eight (8) hours in violation of the provisions of the California Labor Code.
1-36 OVERTIME - NO EXTRA COMPENSATION
Overtime work (i.e., work in excess of eight (8) hours in any one (1) calendar day or work performed on a Sunday or other legal holiday) shall not entitle the Contractor to any compensation for any contract item in addition to that set forth in the contract for the kind of work performed even though such overtime or legal holiday work may be required under emergency conditions, and may be ordered by the Community Services Director in writing. In case of extra work ordered by the Community Services Director under the provisions of section 1-21 hereof, no additional payment will be made to the Contractor because of the payment by him of overtime or legal holiday rates for such work, unless the use of overtime or legal holiday work in connection with such extra work is specifically ordered in writing by the Community Services Director and then only to such extent as extra payment is regularly being made by the Contractor to his men for overtime or legal holiday work of a similar nature in the same locality. 1-37 CHARACTER OF WORKERS
None but skilled workers shall be employed on work requiring special qualifications. When required in writing by the Community Services Director, the Contractor or any subcontractor shall discharge any person who is in the opinion of the Community Services Director, incompetent, unfaithful, disorderly or otherwise unsatisfactory and shall not again employ such discharged person on the work except with the consent of the Community Services Director. Such discharge shall not be the basis of any claim for compensation or damage against the City or any of its officers.
1-38 SAMPLES AND TESTS
At the option of the Community Services Director, the source of supply of each of the materials shall be approved by the Community Services Director before delivery is started and before such material is used in the work. Representative preliminary samples of the character and quality prescribed shall be submitted by the Contractor or producer of all materials to be used in the work for testing or examination as desired by the Community Services Director.
All tests of materials furnished by the Contractor shall be made in accordance with commonly recognized standards of national organizations, and such special methods and tests are prescribed in these specifications.
The Contractor shall furnish such samples of materials as are requested by the Community Services Director, without charge. No material shall be used until it has been approved by the
15.d
Packet Pg. 521 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 48 Community Services Director. Samples will be secured and tested whenever necessary to determine the quality of material.
1-39 INSPECTION
The Director of Public Works shall at all times have access to the work during construction, and shall be furnished with every reasonable facility for ascertaining full knowledge respecting the progress, workmanship and character of materials used and employed in the work.
Whenever the Contractor varies the period, which work is carried on each day, he shall give due notice to the Community Services Director, so that proper inspection may be provided. Any work done in the absence of the Community Services Director will be subject to rejection. The inspection of the work shall not relieve the Contractor of any of his obligations to fulfill the contract as prescribed. Defective work shall be made good and unsuitable materials may be rejected notwithstanding the fact that such defective work and unsuitable materials have been previously overlooked by the Community Services Director and accepted or estimated for payment. 1-40 DEFECTIVE WORK OR MATERIALS – WARRANTIES, GUARANTEES AND
INSTRUCTION SHEETS
(a) If the work, or any part thereof, shall be found defective at any time before the final acceptance of the whole work, the Contractor shall forthwith make good such defects without compensation in a manner satisfactory to the Community Services Director, and the cost of any excess material furnished by the City shall be borne by the Contractor. (b) All materials not conforming to the requirements of these specifications shall be considered as defective and all such material whether in place or not shall be rejected and shall be removed immediately from the site of the work unless otherwise permitted by the Community Services Director. No rejected material, the defects of which have been subsequently corrected shall be used until approved in writing by the Community Services Director.
(c) Upon failure on the part of the Contractor to comply with any order of the Community Services Director made under the provisions of this article, the Community Services Director shall have authority to remove and replace defective material and to deduct the cost of removal and replacement from any monies due or to become due the Contractor. (d) The work shall be warranted by the Contractor against defective materials and workmanship for a period of one (1) year. The warranty period shall start on the date the work was completed as determined by the Engineer.
(e) The warranty period for specific items covered under manufacturers’ or suppliers’ warranties shall commence on the date they are placed into service at the direction of or as approved by the Engineer in writing.
(f) All warranties, express or implied, from subcontractors, manufacturers or suppliers, of any tier, for the materials furnished and work performed shall be assigned, in writing, to the City, and any such warranties shall be delivered to the Engineer prior to acceptance of the Contractor’s performance of the contract.
(g) The Contractor shall replace or repair defective materials and workmanship in a manner satisfactory to the Engineer, after notice to do so from the Engineer, and within the time specified in the notice. If the Contractor fails to make such replacement or repairs within
15.d
Packet Pg. 522 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 49 the time specified in the notice, the City may perform the replacement or repairs at the Contractor’s expense. If the Contractor fails to reimburse the City for the actual costs, the Contractor’s Surety shall be liable for the cost thereof. 1-41 USE OF COMPLETED PORTIONS
The City may at any time during progress of the work, after written notice to the Contractor, take over and place in service any completed portions of the work which are ready for service, although the entire work of the contract is not fully completed and notwithstanding the time for completion of the entire work or such portions which may not be expired. In case, the City shall issue certificates of acceptance for such portions of the work but such taking possession thereof shall not be deemed an acceptance of any other portion of the work, nor of any incomplete portions, nor of any work not completed in accordance with the contract documents. 1-42 PROPERTY RIGHTS IN MATERIALS
Nothing in this contract shall be construed as vesting in the Contractor any right of property in the materials used after they have been attached or affixed to the work or the soil or after payment has been made for the value of unused material delivered to the site of the work as provided for in section 1-23 hereof. All such materials attached or affixed or unused shall become the property of the City.
1-43 TITLE TO MATERIALS FOUND ON THE WORK
The right to the use of all soil, stone, gravel, sand and all other materials and equipment developed or obtained in the excavation or other operations by the Contractor or any subcontractor or any of their employees and the right to use and/or dispose of the same are hereby expressly reserved in the City and neither the Contractor, nor any subcontractor nor any of their employees shall have any right, title or interest in or to any part thereof nor shall they, nor any of them, assert or make any claim thereto. The Contractor shall be permitted to use in the work, without charge, any such materials, which meet the requirements of these specifications. 1-44 ENFORCEMENT OF ORDER
The Contractor shall be responsible for maintaining good order at the site where work is performed under this contract and to that end shall employ such watchmen or other persons as may be required. Unauthorized persons shall be excluded from the site of the work. The Contractor shall not sell, nor shall he permit or suffer the introduction or use of intoxicating liquors or narcotics upon the works embraced in these specifications or upon any of the grounds occupied or controlled by him in connection with such works.
1-45 PATENTS AND COPYRIGHTS
The Contractor shall hold and save the City, it officers, agents and employees harmless from liability of any nature and kind including costs and expenses for or on account of any copyrighted or copyrighted composition, secret process, patented or un patented invention, article or appliance manufactured, furnished or used by him in the performance of this contract, including their use by the City, unless otherwise specifically set forth in the contract. 1-46 LAWS AND REGULATIONS
(a) The Contractor shall keep himself fully informed of all Federal and State laws, County and City ordinances and regulations which in any manner affect those engaged or employed
15.d
Packet Pg. 523 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 50 on the work or the materials used in the work or in any way affecting the conduct of the work. If any discrepancy or inconsistency should be discovered in this contract, or in the drawings or specifications herein referred to in relation to any such law, ordinance or regulation, he shall forthwith report the same in writing to the Community Services Director. He shall, at all times, observe and comply with and shall cause all his agents and employees to observe and comply with all such applicable laws, ordinances and regulations in effect or which may become effective before completion of this contract. He shall protect and indemnify the City and its officers and agents against any claim or liability arising from or based on the violation of any such law, ordinance or regulation whether by himself or by his employees.
(b) Except as otherwise explicitly provided elsewhere in these specifications, all permits and licenses necessary to the prosecution of the work shall be secured by the Contractor at his own expense, and he shall pay all taxes properly assessed against his equipment or property used or required in connection with the work.
(c) All Federal laws and regulations now imposed by competent authority and relating to any materials required to be furnished under these specifications and work required to be done hereunder shall be deemed to be and hereby are made controlling and part of these specifications.
1-47 SALES AND/OR USE TAXES
Except as may be otherwise provided herein, all sales and/or use taxes assessed by Federal, State or local authorities on materials used or furnished by the Contractor in performing the work hereunder shall be paid by the Contractor.
1-48 ADDITIONAL RESPONSIBILITY FOR DAMAGE
(a) Indemnity Agreement
In addition and complementary to any other indemnification provided for the project, and except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Contractor hereby assumes liability for and agrees to defend (at Indemnitees’ option), indemnify, protect and hold harmless the City and its project consultants, engineers, officers, agents, and employees (“Indemnitees”) from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including counsel fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement or the performance of the work including, but not limited to, death of or bodily or personal injury to persons or damage to property, including property owned by or under the care and custody of the City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of the Contractor, its officers, agents, employees or subcontractors including, but not limited to, liability arising from:
1. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use of occupation of the premises by the Contractor, its officers, agents, employees, or subcontractors;
2. Any operation conducted upon or any use or occupation of the premises by the Contractor, its officers, agents, employees, or subcontractors under or pursuant to the provisions of this contract or otherwise;
15.d
Packet Pg. 524 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 51 3. Any act, omission or negligence of the Contractor, its officers, agents, employees, or subcontractors.
4. Any failure of the Contractor, its officers, agents or employees to comply with any of the terms or conditions of this contract or any applicable Federal, State, regional or municipal law, ordinance, rule or regulation; and
5. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub-subsections (1), (2), (3), and (4), existing or conducted upon or arising from the use or occupation by the Contractor on any other premises in the care, custody and control of the City.
The Contractor also shall indemnify the City and pay for all damage or loss suffered by the City including but not limited to damage to or loss of the City’s property, to the extent not insured by the City and loss of the City’s revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub-subsections (1), (2), (3), (4), and (5).
The Contractor’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of the City under any provision of this Agreement, the Contractor shall not be required to indemnify and hold harmless the City for liability attributable to the active negligence of the City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where the City is shown to have been actively negligent and where the City’s active negligence accounts for only a percentage of the liability involved, the obligation of the Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of the City.
The Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of the Contractor in the performance of this Agreement. In the event the Contractor fails to obtain such indemnity obligations from others as required here, the Contractor agrees to be fully responsible according to the terms of this section.
Failure of the City to monitor compliance with these requirements imposes no additional obligations on the City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend the City as set forth here is binding on the successors, assigns or heirs of the Contractor and shall survive the termination of this Agreement or this section.
This Indemnity shall survive termination of the Agreement of Final Payment hereunder. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract documents or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, the City may, in its sole discretion, reserve, retain or apply any monies to the Contractor under this Agreement for the purpose of resolving such claims; provided, however, the City may release such funds if the Contractor provides the City with reasonable assurance of protection of the Indemnitees’ interests. The City shall, in its sole discretion, determine whether such assurances or reasonable. 1-49 TRESPASS
15.d
Packet Pg. 525 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 52 The Contractor shall be responsible for all damage or injury, which may be caused on any property by trespass of the Contractor’s employees in the course of their employment whether the said trespass was committed with or without the consent or knowledge of the Contractor. 1-50 SAFETY, SANITARY AND MEDICAL REQUIREMENTS
The Contractor and his subcontractors, if any, and employees shall promptly and fully carry out the existing safety, sanitary and medical requirements as may from time to time be prescribed by the City or by County or State Health Departments to the end that proper work shall be done and the safety and health of the employees and of the community may be observed and safeguarded.
In case such regulations and orders are not observed by the Contractor they may be enforced by the Community Services Director at the Contractor’s expense. 1-51 PROTECTION AND CLEAN UP
The Contractor shall protect and care for all work until completion and acceptance thereof. Before the Contractor makes application for the acceptance of the work, all rubbish, excess earth and rock or surplus materials shall be removed leaving the site in a neat, orderly and presentable condition.
1-52 LABOR DISCRIMINATION
No discrimination shall be made in the employment of persons upon Public Works because of the race, color, religious creed, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age or sexual orientation of such persons except as provided in Government Code §12940, and every contractor for Public Works violating Labor Code §1735 is subject to all penalties imposed for a violation of Chapter 1, of Part 7, of Division 2 of the California Labor Code. 1-53 APPRENTICES
Attention is directed to the provisions of Labor Code §§1777.5 and 1777.6 concerning the employment apprentices by the Contractor or any subcontractor under him. The Contractor and any subcontractor under him shall comply with the requirements of said sections in the employment of apprentices.
Information relative to Apprenticeship Standards Wage Schedules and other requirements may be obtained from the Director of Industrial Relations, Ex Officio the Administrator of Apprenticeship - San Francisco, California or from the Division of Apprenticeship Standards and its branch offices.
1-54 PRECONSTRUCTION CONFERENCE
Before the start of construction, the Community Services Director will arrange to meet with the Contractor to discuss the requirements on such matters as project supervision, on-site inspections, progress, schedules and reports, payment(s) to Contractor(s), safety and other items pertinent to the project. At this conference, all parties should be prepared to discuss any anticipated problems.
1-55 SUBCONTRACTING LISTING
15.d
Packet Pg. 526 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 53 (a) Any person making a bid or offer to perform the work described in this contract shall in his bid or offer set forth:
1. The name and location of the place of business of each subcontractor who will perform work of labor or render service to the Contractor in or about the construction of the work or improvement or a subcontractor licensed by the State of California, who, under the subcontract to the Contractor, especially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications in an amount in excess of one-half of one percent (.005%) of the Contractor’s total bid.
1. The portion of the work, which will be done by each such subcontractor under this contract. The Contractor shall list only one subcontractor for each such portion as is defined by the Contractor in his bid.
2. The Contractor’s State registration number
(b) No Contractor whose bid is accepted shall, without the consent of the City either:
1. Substitute any person as subcontractor in place of the subcontractor designated in the original bid.
2. Permit any subcontractor to be assigned or transferred or allow it to be performed by any other than the original subcontractor listed in the bid.
3. Sublet or subcontract any portion of the work in excess of one-half of one percent (.005%) of the Contractor’s bid as to which his original bid did not designate a subcontractor.
(c) Subletting or subcontracting any portion of the work as to which no subcontractor was designated in the original bid shall be permitted only in case of public emergency or necessity, and then only after a finding reduced to writing as public record of the awarding authority setting forth the facts constituting such emergency or necessity.
END OF GENERAL CONDITIONS
15.d
Packet Pg. 527 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 54 SUPPLEMENTARY GENERAL CONDITIONS (STATE)
CALIFORNIA STATE REQUIREMENTS- These prevail over conflicting provisions of the General Conditions
1. State Wage Determinations:
a) As required by Labor Code §§1770 et seq., the Contractor shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Copies of such prevailing rate of per diem wages are on file at the office of the City, which copies shall be made available to any interested party on request. The Contractor shall post a copy of such determination at each job site. b) In accordance with Labor Code §1775, the Contractor shall, as a penalty to the City, forfeit not more than two hundred dollars ($200) for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director for the work or craft in which the worker is employed for any public work done under the contract by him or her or by any subcontractor under him or her.
2. Workers' Compensation:
a) In accordance with the provisions of Labor Coded §3700, the Contractor shall secure the payment of compensation to his employees.
b) Prior to beginning work under the Contract, the Contractor shall sign and file with the City the following certification:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the WORK of this Contract.” c) Notwithstanding the foregoing provisions, before the Contract is executed on behalf of the City, a bidder to whom a contract has been awarded shall furnish satisfactory evidence that it has secured in the manner required and provided by law the payment of Workers’ Compensation.
3. Apprentices on Public Works: The Contractor shall comply with all applicable provisions of Labor Code §1777.5 relating to employment of apprentices on public works.
4. Working Hours: The Contractor shall comply with all applicable provisions of Labor Code §§1810 to 1815, inclusive, relating to working hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the execution of the Contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (40) hours in any one (1) calendar week, unless such worker receives compensation for all hours worked in excess of eight (8) hours at not less than one and one-half (1.5) times the basic rate of pay.
5. Contractor Not Responsible For Damage Resulting From Certain Acts of God:
As provided in Public Contract Code §7105, the Contractor shall not be responsible for the cost of repairing or restoring damage to the work which damage is determined to have been proximately caused by an act of God, in excess of five percent (5%) of the contracted amount, provided, that the work damaged was built in accordance with accepted and applicable building standards and the plans and specifications of the City. The Contractor shall obtain insurance to
15.d
Packet Pg. 528 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 55 indemnify the City for any damage to the Work caused by an act of God if the insurance premium is a separate bid item in the bidding schedule for the work. For purposes of this section, the term “acts of God” shall include only the following occurrences or conditions and effects: earthquakes in excess of a magnitude of three and one-half (3.5) on the Richter Scale and tidal waves.
6. Notice of Completion: In accordance with Civil Code §§9204 and 9208, within fifteen (15) days after date of acceptance of the work by the City’s governing body, the City will file, in the County Recorder's office, a Notice of Completion of the work.
7. Unpaid Claims: If, at any time prior to the expiration of the period for service of a stop payment notice, there is served upon the City a stop payment notice as provided in Civil Code §§9350 et seq., the City shall, until the discharge thereof, withhold from the monies under its control so much of said monies due or to become due to the Contractor under this Contract as shall be sufficient to answer the claim stated in such stop payment notice and to provide for the reasonable cost of any litigation thereunder; provided, that if the construction manager shall, in its discretion, permit the Contractor to file with the City the bond referred to in Civil Code §9364, said monies shall not thereafter be withheld on account of such stop payment notice.
8. Concrete Forms, False work, and Shoring: The Contractor shall comply fully with the requirements of section 1717 of the Construction Safety Orders, State of California, Department of Industrial Relations, regarding the design of concrete forms, false work and shoring, and the inspection of same prior to placement of concrete. Where the said section 1717 requires the services of a civil engineer registered in the State of California to approve design calculations and working drawings of the false work or shoring system, or to inspect such system prior to placement of concrete, the Contractor shall employ a registered civil engineer for these purposes, and all costs therefore shall be included in the price named in the Contract for completion of the work as set forth in the Contract Documents.
9. Retainage From Monthly Payments: Pursuant to Public Contract Code §22300, the Contractor may substitute securities for any money withheld by the City to insure performance under the Contract. At the request and expense of the Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a State or Federally chartered bank as the escrow agent, who shall return such securities to the Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the City which provides that no portion of the securities shall be paid to the Contractor until the City has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The City will not certify that the Contract has been satisfactorily completed until at least thirty (30) days after filing by the City of a Notice of Completion. Securities eligible for investment under Public Contract Code §22300 shall be limited to those listed in Government Code §16430 and to bank or savings and loan certificates of deposit, interest bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by the Contractor and the City.
10. Public Works Contracts; Assignment to Awarding Body: In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. sec. 15) or under the Cartwright Act (Chapter 2 (commencing with section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the Contractor, without further acknowledgement by the parties.
15.d
Packet Pg. 529 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 56 11. Payroll Records; Retention; Inspection; Noncompliance Penalties; Rules and Regulations: (a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project. (b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee’s payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract and the Division of Labor Standards Enforcement of the Department of Industrial Relations. (3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor. (c) Unless required to be furnished directly to the Labor Commissioner in accordance with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Except as provided in subdivision (f), any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual’s name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a multiemployer Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests the records for the purposes of allocating contributions to participants shall be marked or obliterated only to prevent disclosure of an individual’s full social security number, but shall provide the last four digits of the social security number. Any copy of records made available for inspection by, or furnished to, a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual’s social security number.
15.d
Packet Pg. 530 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 57 (f) An employer shall not be liable for damages in a civil action for any reasonable act or omission taken in good faith in compliance with this subdivision. (g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address. (h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
12. Cultural Resources: The Contractor’s attention is directed to the provisions of the Clean Water Grant Program Bulletin 76A which augments the National Historic Preservation Act of 1966 (16 U.S.C. 470) as specified under section 01560, “Temporary Environmental Controls” of the General Requirements.
13. Protection of Workers In Trench Excavations: As required by Labor Code §6705 and in addition thereto, whenever work under the Contract involves the excavation of any trench or trenches five (5) feet or more in depth, the Contractor shall submit for acceptance by the City or by a registered civil or structural engineer, employed by the City, to whom authority to accept has been delegated, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation, of such trench or trenches. If such plan varies from the shoring system standards established by the Construction Safety Orders of the Division of Industrial Safety, the plan shall be prepared by a registered civil or structural engineer employed by the Contractor, and all costs therefore shall be included in the price named in the Contract for completion of the work as set forth in the Contract Documents. Nothing in this section shall be deemed to allow the use of a shoring, sloping, or other protective system less effective than that required by the Construction Safety Orders. Nothing in this section shall be construed to impose tort liability on the City, the Construction Manager, the Design Consultant or any of their officers, agents, representatives, or employees.
14. Travel and Subsistence Pay:
a) As required by Labor Code §1773.1, the Contractor shall pay travel and subsistence payments to each worker needed to execute the work, as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed in accordance with this section. b) To establish such travel and subsistence payments, the representative of any craft, classification or type of worker needed to execute the contracts shall file with the Department of Industrial Relations fully executed copies of collective bargaining agreements for the particular craft, classification or type of work involved. Such agreements shall be filed within ten (10) days after their execution and thereafter shall establish such travel and subsistence payments whenever filed thirty (30) days prior to the call for bids.
15.d
Packet Pg. 531 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 58 15. Removal, Relocation or Protection to Existing Utilities:
a) In accordance with the provisions of Government Code §4215, any contract to which a public agency as defined in Government Code §4401 is a party, the public agency shall assume the responsibility, between the parties to the contract, for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the site of any construction project that is a subject of the contract, if such utilities are not identified by the public agency in the plans and specifications made a part of the invitation for bids. The agency will compensate Contractor for the costs of locating, repairing damage not due to the failure of the Contractor to exercise reasonable care, and removing or relocating such utility facilities not indicated in the plans and specifications with reasonable accuracy and for equipment on the project necessarily idled during such work.
b) The Contractor shall not be assessed liquidated damages for delay in completion of the project, when such delay was caused by the failure of the public agency or the city of the utility to provide for removal or relocation of such utility facilities. c) Nothing herein shall be deemed to require the public agency to indicate the presence of existing service laterals or appurtenances when the presence of such utilities on the site of the construction project can be inferred from the presence of other visible facilities, such as buildings, meter and junction boxes, on or adjacent to the site of construction; provided, however, nothing herein shall relieve the public agency from identifying main or trunklines in the plans and specifications.
d) If the Contractor while performing the contract discovers utility facilities not identified by the public agency in the contract plans or specifications, he shall immediately notify the public agency and utility in writing.
e) The public utility, where they are the City, shall have the sole discretion to perform such repairs or relocation work or permit the Contractor to do such repairs or relocation work at a reasonable price.
16. Contractor License Requirements: In accordance with Business and Professions Code §7028.15, a licensed contractor shall not submit a bid to a public agency unless his or her contractor’s license number appears clearly on the bid, and the license expiration date is stated.
Any bid not containing this information, or a bid containing information which is subsequently proven false, shall be considered nonresponsive and shall be rejected by the public agency.
17. Prohibiting Work by Certain Contractors: Pursuant to the provisions in Labor Code §§1777.1 and 1777.7, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a subcontractor on a public works project. This list of debarred contractors is available from the Department of Industrial Relations web site at:
http://www.dir.ca.gov/DLSE/Debar.html.
END OF CALIFORNIA STATE REQUIREMENTS
END OF SUPPLEMENTARY GENERAL CONDITIONS
15.d
Packet Pg. 532 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) 59 SPECIAL PROVISIONS
1. ORDER OF WORK
Prior to commencement of any work on the project, a preconstruction conference will be held for the purpose of review and discussion of progress schedule and construction procedures. At the discretion of the Community Services Director, periodic meetings involving project personnel (Contractor, utility and others) will be held for the purpose of coordinating project activities.
2. STARTING AND COMPLETION OF WORK
The work called for in these contract documents shall commence within (10) calendar days after that date set out in the Notice-to-Proceed issued by the City, and shall be diligently pursued to completion within (120) calendar days of said date.
3. FAILURE TO COMPLETE ON TIME AND LIQUIDATED DAMAGES
(See General Conditions 1-19) It is agreed by the parties to the contract that in case of all work called for under the contract is not completed before or upon the expiration of the time limits set forth in these Special Provisions, damages will be sustained by the City and that it will be impracticable to determine the actual damage by which the City will sustain in the event of and by reason of such delay and it is therefore agreed that the contractor will pay to the City the sum of five hundred dollars ($500) per day for each and every day of delay beyond the time prescribed to complete the work.
4. MAINTAINING TRAFFIC
The Contractor shall maintain two way traffic in the work area in accordance with the “Manual of Traffic Controls for Construction and Maintenance Work Zones” and the MUTCD, 1990 Edition or as modified, available through the State of California, Department of Transportation, 1900 Royal Oaks Drive, Sacramento, California 95815.
Personal vehicles of the Contractor’s employees shall not be parked on the traveled way at any time, including any section closed to public traffic.
5. PERMIT FEES
The project shall proceed as a fee permit. The General Contractor shall be responsible for paying permit fees to the City.
6. CONSTRUCTION SIGN
The Contractor shall provide a four (4) foot tall by eight (8) foot wide construction sign to be visible to the public and maintained in good order for the duration of construction. Artwork for the sign shall be provided to the Contractor by the City.
15.d
Packet Pg. 533 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) TAB 2
15.d
Packet Pg. 534 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 535 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 536 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 537 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 538 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 539 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 540 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project)
15.d
Packet Pg. 541 Attachment: 3Q15662 Response to Premier's Response - Ace Electric (6141 : Award of Contract for Swarthout Park Field Lighting Project) Northern California:
2281 Lava Ridge Court, Suite 300
Roseville, CA 95661
Phone: 916.780.9009
Fax: 916.780.9050
Southern California:
2855 E. Guasti Road, Suite 402
Ontario, CA 91761
Phone: 909.230.4209
Fax: 909.937.2034
Elizabeth L. Martyn
[email protected]
REPLY TO:
ROSEVILLE ONTARIO
October 26, 2023
P. Randolph Finch Jr.
Finch, Thornton & Baird
4747 Executive Drive, Suite 700
San Diego, CA 92121
Chris Hinds
Ace Electric, Inc.
4747 Executive Drive, Suite 700
San Diego, CA 92121
Re: Protest of Award for Swarthout Park Field Lighting Project – 350 W. Euclid Avenue, El Centro, California
Dear Mr. Finch and Mr. Hinds:
We serve as City Attorney to the City of El Centro. In accordance with the City’s bid protest procedures, as outlined in the contract documents, this letter provides our analysis in response to the Bid Protest submitted by Ace Electric Inc. (“Ace”) in its letter dated September 12, 2023. We also have considered the response from Premier Electrical Solutions, Inc.. We have not considered the response to Premier’s response provided by Ace, as that response falls outside the bid protest provision of the bid packet and was not submitted within the protest period. Here is the timeline of events for the Swarthout Park Field Lighting Project, 350 W. Euclid Avenue, El Centro, California (“Project”):
July 30, 2023 Invitation for Bids Released (date of advertisement) August 23, 2023 Mandatory Pre-Bid Meeting
September 7, 2023 Bid Opening
September 12, 2023 Bid Protest Submitted by Ace
September 15, 2023 Bid Protest Response by Premier
September 18, 2023 Ace’s response to Premier’s response The Project Manual for the Swarthout Park Field Lighting Project, dated July 2023, provides for the process for submitting and addressing bid protests specifically under Proposal Requirements Section 14. That process was met here.
In reviewing Ace’s bid protest, we separated out the two specific complaints that are the basis of the bid protest. Both reference the sheet entitled “Subcontractors Listing.” Ace claims that Premier’s bid is nonresponsive because of two errors which they describe as follows: under the provisions of Public Contract Code Section 4104, Premier failed to properly complete the subcontractors’ listing form because 1) Premier did not describe the type of work their subcontractors would perform (the “portion of the work”) ; and 2) the subcontractor’s license number for A&N Builders is missing a zero. Ace therefore informed the City that they cannot find the bid responsive and that Ace therefore must be awarded the bid.
15.e
Packet Pg. 542 Attachment: A23-0193 Response Bid Protest 10.30 (6141 : Award of Contract for Swarthout Park Field Lighting Project) October 26, 2023
After Premier’s response, Ace submitted a second letter. Because the second letter was submitted after the bid protest deadline, we consider only the arguments in Ace’s first protest letter.
We have reviewed the entire bid packet as well as the multiple case law citations provided by Ace and case law identified in our research. The City’s response addresses the issue of nonresponsiveness in light of that law, as specifically under the Bay Cities Paving case, cited and discussed below. The ability to waive an immaterial irregularity in a bid lies with the City and is a question of fact. For the reasons given, the City has the authority to waive the irregularities or immaterialities in the Premier bid and did so.
Because Ace supports its bid protest by citations to the following case law, that case law is discussed below. First, Ace provides its strict definition of when a bid is non-responsive. The City has reviewed Ace’s “Legal Standard for Waiving Bid Defects.” The City does not agree with that strict definition in light of Bay Cities Paving. Ace argues the following:
A bid is responsive if it promises to do what the bidding instructions require.” (MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.) Accordingly, a bid is non-responsive if it does not exactly conform to the public agency’s specifications for the contract. (Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1188.) Questions of responsiveness are generally determined by looking exclusively at the face of the bid, and do not depend on outside investigation or information. (Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1453; Taylor Bus Service, Inc. v. San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1341.) “[L]iteral noncompliance with a bid request does indeed make a bid nonresponsive.”
In response, the City does not read the Bay Cities case as supportive of Ace’s position. In analyzing the bid protest, the City applies the principles of Bay Cities Paving & Grading, Inc. 223 Cal. App. 4th 1181, 1188- 1189 (2014) (“Bay Cities”), which provides as follows: [I)t is further well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential.
..."Whether in any given case a bid varies substantially or only inconsequentially from the call for bids is a question of fact.' [Citation.)" As reflected in the authority summarized above, "[t]o be considered inconsequential, a deviation must neither give the bidder an unfair competitive advantage nor otherwise defeat the goals of insuring economy and preventing corruption in the public contracting process." (Citation). These considerations must be evaluated from a practical rather than a hypothetical standpoint, with reference to the factual circumstances of the case. They must also be viewed in light of the public interest, rather than the private interest of a disappointed bidder. It certainly would amount to a disservice to the public if a losing bidder were to be
15.e
Packet Pg. 543 Attachment: A23-0193 Response Bid Protest 10.30 (6141 : Award of Contract for Swarthout Park Field Lighting Project) October 26, 2023
permitted to comb through the bid proposal or license application of the low bidder after the fact, [and) cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy." (Bay Cities, supra; emphasis added).
The other cases cited by Ace are not applicable: The MCM case has been distinguished by Bay Cities. Great West Contractors, Inc. actually deals with a non-responsible bidder. The Taylor Bus Services case, also distinguished by Bay Cities, is not on point as it deals with the lack of the required insurance.
The two issues raised by Ace ultimately are immaterial because they do not affect the bid amount, serve as a vehicle for favoritism, influence other bidders to refrain from bidding or affect the ability to make bid comparisons. Since the bid amount was not affected – and would not change if “corrections” were made - they do not give Premier an advantage. Even if “corrected,” Premier’s bid still would have been the lower of the two. Furthermore, the errors cited would not have provided a basis for Premier to withdraw its bid under Public Contract Code section 5103.
The City is complying with the rules it has made to accept the lowest responsive bid. The citation to the Pozar case is not applicable; in that case (where the Finch firm represented the losing party) the court determined that in the absence of the wording in the bid to the contrary, the unit price must prevail.
The Subcontractor Listing form contains one sentence which states: “The Bidder shall also list below the portion of the work which will be done by each contractor under this contract.” The bid does not say “type of work” nor does it contain the detailed explanation provided by Ace. “Portion” also can mean percentage as opposed to type. Premier Electrical Solutions listed percentages in the Subcontractor Listing form; however, because the form did not expressly define “portion of work,” after review by Staff, percentages were deemed adequate. The City is in the best position to determine what it meant by its bid rules. City staff could see from the face of the bid that a zero had been left off a number and the number was able to be verified on line.
City staff also noted through the Bid Review process that Ace’s bid submission itself was incomplete. Specifically, the Worker’s Compensation Certificate, Corporate Certification or Partnership Information Form, and Contractor’s Certification of Qualification for License Classification were missing any signature attesting to the information, as required by the bid documents. As such, three forms were deemed incomplete; had Ace been the low bidder, its bid could have been rejected as non-responsive.
Therefore, we agree with the City’s staff determination that Premier is the low bidder and the recommendation of the award of the bid to Premier.
15.e
Packet Pg. 544 Attachment: A23-0193 Response Bid Protest 10.30 (6141 : Award of Contract for Swarthout Park Field Lighting Project) October 26, 2023
Sincerely,
Elizabeth L. Martyn
Elizabeth L. Martyn
COLE HUBER LLP
City Attorney
ELM/RMB
15.e
Packet Pg. 545 Attachment: A23-0193 Response Bid Protest 10.30 (6141 : Award of Contract for Swarthout Park Field Lighting Project) City Council of the City of El Centro Meeting: 11/07/23 11:30 AM 1275 Main Street Department: Engineering Division
El Centro, CA 92243 Category: Resolution
Prepared By: Catherine Gutierrez
SCHEDULED Department Head: Abraham Campos
RESOLUTION (ID # 5937) DOC ID: 5937
Approval of Resolution Authorizing the City to Receive State Funding
CITY MANAGER’S RECOMMENDATION:
Adopt Resolution No. 23- , RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF EL CENTRO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE
CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE EMBELLECE (BEAUTIFY) EL CENTRO PROJECT
FISCAL IMPACT:
There is no impact to the General Fund.
Grant amount is $4,782,000 and does not require a match.
STRATEGIC PLANNING PROGRAM 2022-2027 RELATION:
Goal #5 - City Beautification, Engagement & Civic Pride Action 5.7: Re-imagined downtown El Centro as a vibrant shopping, dining and entertainment destination that provides high quality civic spaces for cultural events, public gatherings, and recreational uses with opportunities for businesses to thrive.
DUE DILIGENCE CHECK FOR CONTRACTORS/CONSULTANTS: DID THE
DEPARTMENT VERIFY CURRENT EL CENTRO BUSINESS LICENSE,
CONTRACTORS LICENSE, REFERENCE CHECKS, INSURANCE, ETC:
N/A
BACKGROUND:
The Clean California Local Grant Program (CCLGP) was established by the legislature for the purposes of beautifying and cleaning up local streets and roads, tribal lands, parks, pathways, and transit centers and other public spaces with the ultimate goal of restoring pride in California's public spaces in disadvantaged communities.
On February 2023 CCLGP released a call for projects announcement for Cycle 2 which provides approximately $100 million to awardees throughout the State. CCLGP received 230 applications for Cycle 2. Maximum allowable grant amount request was $5 million dollars and there was no minimum award.
Eligible projects included infrastructure or non-infrastruct ure projects that reduce litter, beautify public spaces, improve public health, and foster place-making.
Staff submitted an application for a grant amount request of $4,782,000 for a project that proposes to beautify Downtown by creating a food truck court within the Town Square, a City-owned property along Main Street. The project also includes ten trash and recycling receptacles for a total of twenty receptacles from 4th to 8th Streets along Main Street. Additional improvements include murals, gateway signs, and curb inlet 16 Packet Pg. 546
Resolution (ID # 5937) Meeting of November 7, 2023
screen protectors.
DISCUSSION:
On October 9, 2023 the City was notified that it had been selected as a CCLGP Cycle 2 award recipient. The City was one of 42 applications selected out of 230 applications received.
The City was awarded the grant amount requested, $4,782,000.
Next steps for Cycle 2 awardees is obtaining the board resolution that specifies the individual from the organization authorized to execute a Restricted Grant Agreement (RGA) with Caltrans.
Once the RGA is executed, funds will be released to the agency for use of the grant funds.
Tentative Construction Schedule:
• Project Award Announcement October 2023
• Design Contract Award February 2024
• Design Complete December 2024
• Construction Start April 2025
• Project Completion Date June 30, 2026
CONCLUSION:
Adopt Resolution No. 23- , RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF EL CENTRO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE
CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE EMBELLECE (BEAUTIFY) EL CENTRO PROJECT
ATTACHMENTS:
• Resolution 00072560 (PDF)
16 Packet Pg. 547
10/2023/cdz/A23-0212/Reso/CleanCalifLocalGrantProg
RESOLUTION NO. 23 -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
EL CENTRO AUTHORIZING THE EXECUTION OF AN
AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF
TRANSPORTATION FOR THE EMBELLECE (BEAUTIFY)
EL CENTRO PROJECT
WHEREAS, the City Council of the City of El Centro, California (hereinafter referred to as “City Council”) is eligible to receive State funding for certain transportation-related work through the California Department of Transportation; and WHEREAS, the City of El Centro has been selected as a Clean California Local Grant Program (“CCLGP”) award recipient of four million seven hundred eighty-two thousand dollars and zero cents ($4,782,000.00) for the Embellece (Beautify) El Centro Project (the “Project”); and
WHEREAS, a Restricted Grant Agreement is needed to be executed with the California Department of Transportation before such funds can be claimed through the CCLGP, as well as a resolution authorizing the execution of the grant agreements for the Project and any amendments thereto to the City’s designee; and
WHEREAS, the City Council finds that the approval of this resolution will be in the best interests of the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EL CENTRO, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
1. That the foregoing is true, correct and adopted.
2. That the City Manager or designee is hereby authorized on behalf of the City of El Centro to execute all Restricted Grant Agreements and any amendments thereto with the California Department of Transportation, as well as any and all other documents necessary to receive the grants for the project and to take any and all other necessary action to implement the Project.
3. That the contract for the Project shall be reviewed and approved as to form and legality by the City Attorney prior to execution and placed on file in the Office of the City Clerk.
16.a
Packet Pg. 548 Attachment: Resolution 00072560 (5937 : Clean California Grant Award Resolution) 10/2023/cdz/A23-0212/Reso/CleanCalifLocalGrantProg
PASSED AND ADOPTED at a regular meeting of the City Council of the City of El Centro, California held on day of , 2023.
CITY OF EL CENTRO
By _____________________
Martha Cardenas-Singh, Mayor
ATTEST:
By _____________________________
Norma Wyles, City Clerk
APPROVED AS TO FORM:
Office of the City Attorney
By________________________________
Elizabeth L. Martyn, City Attorney
STATE OF CALIFORNIA )
COUNTY OF IMPERIAL ) ss
CITY OF EL CENTRO )
I, Norma Wyles, City Clerk of the City of El Centro, California do hereby certify that the foregoing Resolution No. 23- was duly and regularly adopted at a regular meeting of the City Council of the City of El Centro, California, held on the day of , 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
By__________________________
Norma Wyles, City Clerk
16.a
Packet Pg. 549 Attachment: Resolution 00072560 (5937 : Clean California Grant Award Resolution) City Council of the City of El Centro Meeting: 11/07/23 11:30 AM 1275 Main Street Department: City Clerk's Office
El Centro, CA 92243 Category: Alcoholic Beverage License Prepared By: Norma Valenzuela
SCHEDULED Department Head: Norma Wyles
INFORMATION ITEM (ID # 6181) DOC ID: 6181
Received and referred to Community Development
Department, Application for Alcoholic Beverage License El Guerro Tacos & Beer 1560 Ocotillo Dr. STE K El Centro, CA 92243-4237
ATTACHMENTS:
• Application for Alcoholic Beverage License ELGUERO TACOS & BEER (PDF) 17 Packet Pg. 550
17.a
Packet Pg. 551 Attachment: Application for Alcoholic Beverage License ELGUERO TACOS & BEER (6181 : Application for Alcoholic Beverage License EL
17.a
Packet Pg. 552 Attachment: Application for Alcoholic Beverage License ELGUERO TACOS & BEER (6181 : Application for Alcoholic Beverage License EL City Council of the City of El Centro Meeting: 11/07/23 11:30 AM 1275 Main Street Department: City Clerk's Office
El Centro, CA 92243 Category: Alcoholic Beverage License Prepared By: Norma Valenzuela
SCHEDULED Department Head: Norma Wyles
INFORMATION ITEM (ID # 6182) DOC ID: 6182
Received and referred to Community Development
Department, Application for Alcoholic Beverage License La Birrieria Red Tacos # 2 El Centro, CA 92243
ATTACHMENTS:
• APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE LA BIRRIERIA RED TACOS#2 (PDF) 18 Packet Pg. 553
18.a
Packet Pg. 554 Attachment: APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE LA BIRRIERIA RED TACOS#2 (6182 : Application for Alcoholic Beverage
18.a
Packet Pg. 555 Attachment: APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE LA BIRRIERIA RED TACOS#2 (6182 : Application for Alcoholic Beverage